Saturday, June 6, 2020
Another public nuisance lawsuit has made the news. On Wednesday, June 3, Make the Road New York, Public Justice, and the Terrell Marshall Law Group of Seattle, WA filed a lawsuit on behalf of Derrick Palmer, Kendia Mesidor, Benita Rouse, Alexander Rouse, Barbara Chandler, and Luis Pellot-Chandler against Amazon.Com, Inc. and Amazon.Com Services, LLC.
The 35-page complaint alleges that defendants violated New York public nuisance law and seeks declaratory judgment to that effect. The complaint also alleges that defendants breached their duty to protect the health and safety of employees as required by New York Labor Law § 200 (the state law analogue to OSHA’s general duty clause (I note in passing that Federal OSHA, unlike New York law, provides no private right of action for alleged breaches of the general duty clause). Finally, the complaint alleges that defendants failed to pay plaintiff Barbara Chandler “quarantine leave” pay as required under New York law. (I discuss only the public nuisance claim in this post).
The setting of the dispute is Amazon’s huge fulfillment center known as “JFK8.” According to the complaint, “[t]he JFK8 facility is a small city that runs twenty-four hours a day, seven days a week and has a footprint of more than fourteen football fields.” Moreover, “[o]n average there are approximately 3,500 workers at JFK8. During peak seasons, which include months leading up to Christmas and the time around Amazon Prime Day in July, the workforce swells to approximately 5,000 workers.” The facility is huge and has been almost frantically busy and in much turmoil during the pandemic for reasons too obvious to require discussion.
One initial legal observation is that plaintiffs filed in federal court in the Eastern District of New York. I suspect this means that plaintiffs have some reason to suppose that the EDNY is less likely to be swayed by the primary jurisdiction argument that prompted dismissal of a similar claim by a different federal court in the Smithfield Foods case in Missouri (also filed by Public Justice). Readers may recall that plaintiffs in the recently-filed McDonald’s public nuisance case in Chicago chose to file in Illinois state court, which, I have speculated, may have been motivated in part by a desire to sidestep the primary jurisdiction problem (and apparently has because the judge in that case has denied a preliminary motion to dismiss).
I cannot do 35-pages of pleadings justice in a blogpost, but here is my (reasonably) short form account. First, the factual allegations lead us to the plaintiffs’ conclusions that employees often work while sick because the employers’ leave policies in one way or another compel them to do so. Second, the plaintiffs allege that, because of the blistering pace of the working conditions, social distancing really cannot succeed even where they have been half-heartedly (as the complaint alleges) implemented. Thus, employees may come to work sick, or may get sick at work, but in either event leave work sick, go home sick and—and here is where the public nuisance angle enters—get others sick. This is the factual lynchpin of the case.
The complaint meticulously alleges the public nuisance claims as being brought on behalf of both employees and family members of the employees. As in other recent cases, plaintiffs do not seek damages and will doubtless press the argument that its claims are therefore not barred by workers’ compensation exclusivity. As I have written elsewhere, regardless what happens at the trial level I suspect that the public nuisance claims of employees may eventually be barred by operation of the exclusive remedy rule. (In New York, the situation seems even clearer since at least one court has held that public nuisance actions are subject to exclusivity. Acevedo v. Consolidated Edison Co. of New York, Inc., 189 A.D.2d 497, 501 (1993)). In short, under the restatement, I do not think employees could obtain public nuisance injunctive relief unless they could obtain public nuisance damages, and I do not think they could obtain public nuisance damages because of workers’ compensation exclusivity (which seems likely in New York).
In any event, plaintiffs who are co-inhabitants with the employee-plaintiffs, present different kinds of legal problems. (Plaintiffs Mesidor, Alexander Rouse, and Luis Pellot-Chandler). These family members may also be subject to workers’ compensation exclusivity depending on the nature of their family relationship to the employee-plaintiffs (the facts on this point are somewhat vague in the complaint). As readers of this blog will know, dependent and eligible family members of injured and deceased workers, as defined by an applicable workers’ compensation statute, are also subject to exclusivity unless a breach of reasonable care, as to them, is “independent.” This issue is too involved to discuss here but interested readers should review 9 Larson's Workers’ Compensation Law § 101.03.
Nevertheless, the inclusion of “family member/householder” plaintiffs in the public nuisance claims is aimed squarely at the requirements of New York law. Under New York public nuisance law, “A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons . . . A public nuisance is actionable by a private person only where the person suffered special injury beyond that suffered by the community at large.” Moreover, “the requisite ‘special’ or ‘peculiar’ injury suffered by private persons must be different in kind, and not just degree, from that sustained by the community surrounding the source of the public nuisance.”
Therefore, a member of the general public might always have difficulty succeeding in a public nuisance claim because that person’s injury resulting from the nuisance is the same as everyone else’s (this is really a prudential standing requirement). Well, who could suffer a special injury in a workplace nuisance context (where, in other words, the workplace is injuring the entire community)? I think it could probably only be an employee or someone to whom an employee has probably given the disease. The probability of exposure/causation goes up in the case of members of the employee’s immediate household. (The problem is akin to secondary asbestos exposure).
I have already discussed the employee’s exclusivity obstacles. I think the family member of the employee—assuming he or she escapes exclusivity—will be challenged to explain how the special injury suffered is different in kind from that sustained by the surrounding community. Perhaps the answer is as simple as that the surrounding community is injured merely through heightened risk of COVID-19 exposure whereas the family member has in fact sustained a COVID-19 injury. See REST 2d TORTS § 821C comment d.
Michael C. Duff