More recently, it has been reported that, since the siege of the Capitol on January 6, 2021, multiple members of the House of Representatives have tested positive for Covid-19 after being locked in a secure space with other congresspersons who refused to wear masks. Such intransigence is not merely thoughtless—it is immoral and unconscionable.

An obvious question arises as to whether people who infect others by engaging in such conduct may be held liable for the damage they cause. This issue transcends the liability of healthcare providers. While physicians may certainly be held liable for negligently infecting patients with communicable diseases, in the context of Covid-19, the subject has far greater import with respect to laypersons who are content to risk the lives of others by wantonly exposing them to this deadly illness.

Malpractice Cases

Although we are confident that exceedingly few physicians would consciously engage in actions that risk infecting their patients, it has, occasionally, happened with other communicable diseases. Several malpractice cases have been brought in New York based on allegations that physicians with hepatitis infected their patients.

In Williams v. Halpern, 25 A.D.3d 467 (1st Dept. 2006), the Appellate Division affirmed a denial of summary judgment on the issue of whether the plaintiff contracted hepatitis C by the defendant's medical malpractice. It also held that a claim for punitive damages as to hepatitis B was properly sustained because the record was sufficient to permit a jury to find that the defendant's conduct demonstrated a gross indifference to patient care and a danger to the public, but that the record was insufficient to raise an issue of fact as to punitive damages as to hepatitis C.

In Vigliotti v. North Shore University Hosp., 24 A.D.3d 751 (2d Dept. 2005), it was alleged that the defendant surgeon, Dr. Michael H. Hall, operated on the plaintiff (and other patients) while he had hepatitis C without informing the plaintiff of his condition, and transmitted the disease to the plaintiff during surgery. The court indicated that the allegations supported causes of action for medical malpractice and lack of informed consent.

Historical Precedent

Looking beyond healthcare providers to any individual who infects another with Covid-19, there is longstanding precedent in New York for persons being subject to liability for intentionally or negligently exposing others to communicable diseases. As far back as the Civil War era, the Court of Appeals held in White v. Nellis, 31 N.Y. 405 (1865) that a father had a right to maintain a cause of action against a defendant alleged to have transmitted gonorrhea to his daughter.

In Cesar v. Karutz, 60 N.Y. 299 (1875), the court upheld the liability of a landlord for leasing to the plaintiff an apartment in which the prior occupants had been infected with smallpox. Shortly after moving in, the plaintiff contracted smallpox and required hospitalization. She brought suit, alleging that the landlord had notice that the prior tenants had been infected with the disease but took no measures to disinfect the premises and failed to inform her of the circumstances before leasing to her. The evidence indicated that three months before she moved in, a tenant living in the apartment had smallpox and recovered, and that one of his children died from the disease around the same time.

While the landlord asserted in defense that the plaintiff contracted it from another tenant on a different floor of the building, there was evidence that he had admitted to a witness that she must have gotten infected from the apartment he had rented to her. The same witness also provided testimony indicating that the landlord knew before he leased the apartment to the plaintiff that the prior tenants had been infected with smallpox.

Since there was "some evidence of notice to the defendant, before the letting of the rooms to the plaintiff, that they were infected," the court held that there was a sufficient basis for the jury's finding that the landlord was liable for the plaintiff's illness.

In Smith v. Baker, 20 F. 709 (Cir. Ct., S.D.N.Y. 1884), the trial court upheld a jury verdict finding the defendant liable for infecting the plaintiff's child with whooping cough. As described by the court, "[t]he defendant took his children, when they had whooping cough, a contagious disease, to the boarding-house of the plaintiff to board, and exposed her child and children of other boarders to it, who took it." The jury found that "this was done without exercising due care to prevent taking disease into the boarding-house."

The plaintiff's damages included her expense and labor in having to care for her infected child, as well as the profits she lost from boarders avoiding her boarding-house. In holding that there was a legal basis for this liability, the court cited as precedent that there existed liability for: telling people that someone has a contagious disease because people will avoid that person; carrying persons infected with contagious diseases on public thoroughfares, which could endanger the health of other travelers; and spreading contagious diseases among animals by negligently disposing of infected animals or allowing them to escape.

Based on this precedent, the court concluded, "[n]egligently imparting such a disease to a person is clearly as great an injury as to impute the having it; and negligently affecting the health of persons injuriously as great a wrong as so affecting that of animals."

The liability recognized in Cesar and Smith is no different from that which would apply to persons infected with Covid-19 who infect others with the virus. If the infected person knows or should know that they have the virus, they should be subject to liability for failing to take reasonable precautions to avoid infecting others.

Cesar was cited by the New Jersey Appellate Division in Earle v. Kuklo, 26 N.J.Super. 471 (App. Div. 1953) in reinstating a claim against a defendant who rented an apartment to the plaintiff without disclosing that she, her husband, and her daughter, who lived on the floor below the apartment, were infected with tuberculosis. The plaintiff's daughter subsequently contracted the disease. In holding that the complaint was improperly dismissed, the appellate court quoted from 25 Am. Jur., Health, §45, p. 318, as follows:

The general principle is well established that a person who negligently exposes another to an infectious or contagious disease, which such other thereby contracts, is liable in damages therefor. * * * The degree of diligence required to prevent exposing another to a contagious or infectious disease depends upon the character of the disease and the danger of communicating it to others. In order to show negligence in exposing another to a contagious or infectious disease, it must be proved that the defendant knew of the presence of the disease.

More Modern Precedent

Most of the modern decisional law from New York and other jurisdictions addressing liability of this nature involves persons alleged to have infected others with sexually transmitted diseases. In Maharam v. Maharam, 123 A.D.2d 165 (1st Dept. 1986), the court held that a wife who alleged that she was infected with genital herpes by her husband stated a cause of action against him for either fraud or negligence based on allegations that he knew or should have known he had contracted a venereal disease, that he had an affirmative duty to disclose it to his wife and failed to do so, and that he intentionally misrepresented his condition to her and caused her to contract the disease.

The court found that a "duty to speak" existed based upon the marital relationship, as well as Public Health Law §2307, which makes it a misdemeanor for someone who knows he or she is infected with a venereal disease to have sexual intercourse with another. The court further commented that causation need not be proven "to a mathematical certainty," and that evidence raising a substantial issue of fact as to causation warranted a trial.

The plaintiff in Plaza v. Estate of Wisser, 211 A.D.2d 111 (1st Dept. 1995) brought an action against the estate of his deceased companion alleging, among other things, that the decedent negligently, deliberately, and fraudulently caused him to become infected with HIV. The court rejected the defendant's argument that the plaintiff could not recover under theories of negligence or fraud, citing allegations the decedent knew or had reason to know that he was infected with HIV prior to the time he was diagnosed as HIV positive, as well as allegations that before the decedent was diagnosed, he knew that his prior sexual partner was HIV positive.

The court further found that there were sufficient factual allegations to demonstrate causation, citing allegations that the decedent was the plaintiff's first and only sexual partner, that they had engaged in sexual intercourse until the decedent informed the plaintiff that he was HIV positive, that the plaintiff's bodily fluids never came into contact with the defendant's bodily fluids while he was caring for the decedent in the weeks and months prior to his death, and that the plaintiff has never engaged in intravenous drug use and never had a blood transfusion. These allegations, the court found, were sufficient to eliminate any means other than decedent's acts and omissions as the cause of the plaintiff's injury, which could be "presumed merely from plaintiff's contraction of the HIV infection."

One of the more frequently cited decisions on the subject of liability for infecting another with a sexually transmitted disease is that of the Alabama Supreme Court in Berner v. Caldwell, 543 So.2d 686 (Ala. 1989) (overruled on other grounds by Ex parte General Motors, 769 So.2d 903 (Ala. 1999)), which held that "one who knows, or should know, that he or she is infected with genital herpes is under a duty to either abstain from sexual contact with others or, at least, to warn others of the infection prior to having contact with them."

The court in Berner cited, among other decisions, Maharam, as well as Smith and Earle, and further observed, "[o]ur holding is in line with the public policy of this state, which seeks to protect its citizens from infection by communicable diseases." This should be the public policy of every state, and it certainly is in New York. See generally Public Health Law Article 21.

What It All Means

Consistent with this public policy, as well as the long line of decisions recognizing that a person may be held liable for infecting another with a contagious disease, there should be no question that someone who infects another with Covid-19 should be subject to liability under basic tort principles. Hence, where someone knows or has reason to know that they are or may be infected with Covid-19, and engages in conduct which exposes others to infection, they should be liable to anyone to whom they transmit the disease. When someone who knows that they are or may be infected has contact or goes near someone in closed quarters without wearing a mask and without warning them that they may be contagious, that individual is most certainly failing to exercise due care.

No doubt, lawsuits on these grounds will face significant hurdles in proving causation (and in obtaining necessary discovery from a defendant who has not waived his or her privilege). However, efforts to hold people accountable for misconduct that exposes others to this deadly illness is important both in deterring people from endangering others and in compensating those who have been injured due to illness or death.

Thomas A. Moore is senior partner of Kramer, Dillof, Livingston & Moore.

Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.

From: New York Law Journal