Monday, March 15, 2021

New Scholarship: Tort Liability for Aggressive Anti-Maskers

            In a timely article, a father and son pair of  Philadelphia-area authors theorize about the tort suits that might be filed by victims (mostly workers are hypothesized) of the aggressive behavior of that supremely uncivil and churlish breed of our fellow citizens: the willful anti-maskers.  See Andrew D. Cotlar & Joshua H. Cotlar, Liability Unmasked: Pennsylvania’s Tort Law Applied to COVID Anti-Maskers, Pennsylvania Bar Association Quarterly (January 2021).

            The authors first cite examples of instances (in Pennsylvania and throughout the U.S.) where workers in the midst of their labor are assaulted or threatened by anti-maskers.  Most of such acts are actually criminal in nature, but the authors observe that in many cases, the police are unable or unwilling to enforce the law.  Here, the authors posit, tort law can have a role: “This article argues that … tort law has traditionally served the function of expressing social norms and providing guidance, and incentives, for good behavior where the police power of the state may fail to be applied, and that liability for refusing to wear a mask during a health pandemic serves just this purpose.” 

            When a worker is physically assaulted and sustains injury by an anti-masker, this model sounds ideal.  In cases where the anti-masker’s aggression is deliberate exhalation on the worker, however, the same causation challenge that impairs the workers’ compensation remedy haunts a cognizable tort suit: “The greatest difficulty from a plaintiff’s perspective will likely be establishing that the plaintiff’s harms were caused by a particular encounter with a particular defendant, as distinguished from generalized conditions of the pandemic likely to cause similar effects.” 

            Still, the authors conclude, “A creative and persistent litigator may find this a challenge but conversely may also be able to develop the necessary basis for liability through proper eye-witness testimony, video surveillance, contact tracing and medical, psychological or economic expert testimony.”

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