Saturday, July 22, 2023

Additional Reflections on Kuciemba (the Covid 19 Liability Case)

The workers’ compensation portion of the Kuciemba case holds that workers’ compensation exclusivity does not defeat “take home” liability. The exclusive remedy bar was found not to apply to this category of cases. A tort case would in principle have been available had the Covid-19 liability not been “crushing.”

Ordinarily, an employee’s exclusive remedy against her employer for work related injury or disease is workers’ compensation. Additionally, the close relatives of employees killed by work are limited to meager workers’ compensation benefits (exclusively) and may not bring a wrongful death (torts) suit against the employers of their deceased relatives in connection with the work-related death. But that type of “exclusivity” applies only when the relative is attempting to “stand in the shoes” of the deceased employee and to bring a tort action in connection with the work related death.  We saw this play out over and over again during the pandemic—particularly in connection with meat processing plants and nursing homes.

But if an employee brings home a substance (like asbestos) or a virus on his or her clothing and a household/family member becomes sick or injured and sues in tort, the household/family member is not seeking “derivative” damages for the employee’s work-related injury or illness (the “transporting” employee need not in fact be injured or sick at all). Rather, the household/family member is seeking an independent remedy for her own injury or illness. Kuciemba did not change this principle and in fact reaffirmed it.   

The essential idea in Kuciemba—that Covid-19 tort liability would crush business—appears over and over again in tort law. This morning I reread Strauss v. Belle Realty Co., 482 N.E.2d 34 (N.Y. 1985). In that case a blackout in New York City (among other things) disabled electric pumps in many apartment buildings, which prevented water in some of those buildings from reaching upper level apartments. An old man wandered from his apartment to the building’s basement to get water (the blackout occurred in July 1977, so it was hot). The man fell on defective steps and sued the apartment building and the utility company for costs arising from his injuries. It had been established in prior related cases that the utility company in question was grossly negligent. Nevertheless, the man was denied recovery from the utility because of the potential for “crushing” liability being imposed on utility companies (as an aside, rules in this area vary from state to state—the rule is not universally nonliability). When I read this case in law school, I was “encouraged” to see utilitarian arguments in a particular way—utility companies and reasonable rates are necessary for all (!). But by then I had already known too many actually crushed people who had fallen down steps. The people who will suffer from the Kuciemba rule are very foreseeable. In the end, I am with the Strauss dissent that a wrongdoer should have to prove (convincingly) that liability would crush it before we allow escape from the consequences of wrongful conduct. I know without doubt who will actually be crushed under business as usual rules.

Michael C. Duff

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