Next Wave of Coronavirus Litigation? Negligent Transmission Claims Against Property Owners and Managers
As the pandemic rages on, insurers and attorneys attempt to predict how COVID-19 will be the next hotbed for personal injury litigation. Enterprising plaintiffs’ lawyers will definitely attempt to figure out how to blame third parties for their client’s infections. “Negligent transmission” or “negligent exposure” cases would blame third parties for negligently exposing the claimant to the virus. Recently, several negligence suits have been filed against Princess Cruise Lines, Ltd., some seeking gross negligence and exemplary damages.
There are a number of potential defendants for these cases including individuals who transmit the virus, premises owners such as grocery stores and restaurants and perhaps one that is not so obvious - owners and property managers of multi-family buildings. Residents and tenants of apartment complexes, hotels and other dwelling units may be looking to owners and property managers of residential properties. In turn, those owners and property managers may look to plumbers and other trade specialties charged with maintaining their properties.
Significantly, there is evidence that strains of the virus can be spread thru defective plumbing pipes, setting the stage for claims against owners and managers of residential properties. While this seems strange, this mechanism of transmission was documented in 2003 during the severe acute respiratory syndrome or SARS outbreak, which was also caused by a coronavirus. In 2003, the SARS coronavirus that infected hundreds of people in a 33-story Hong Kong apartment tower probably spread in part by traveling through bathroom drain pipes.
The mechanism of transmission would be as follows:Typically, bathroom drains have a U-shaped trap that prevents fluids and odors from coming back up. In one instance of a documented spread of the SARS outbreak, officials found that air would flow backward through the drains under certain circumstances, according to a Washington Post article published during the 2003 outbreak. "When the bathroom was in use, with the door closed and the exhaust fan switched on, there could be negative pressure to extract contaminated droplets into the bathroom," Yeoh Eng-kiong, Hong Kong's secretary for health, welfare and food, said at the time, according to the Washington Post. "Contaminated droplets could then have been deposited on various surfaces such as floor mats, towels, toiletries and other bathroom equipment." Officials found that the virus was likely transmitted in the Hong Kong apartment tower through faulty plumbing, according to the World Health Organization. Thus, certainly SARS can be transmitted from other than close person-to-person contact.
A recent Livescience.com article examined the spread of the new coronavirus thru faulty plumbing pipes. The article explained that SARS coronavirus could get into feces and thus into raw sewage. The pipes that carry raw sewage are "usually kept separate from people," said Dr. Amesh Adalja, an infectious-disease specialist and a senior scholar at the Johns Hopkins Center for Health Security in Baltimore. But if there are leaks or breaches in the pipes, it could allow people to be exposed. For example a faulty piping system could allow the virus to become "aerosolized" out of a pipe and get into the surrounding air, Adalja said.
With respect to COVID-19, on February 11, 2020 officials evacuated and quarantined more than 100 residents of an apartment building in Hong Kong's Tsing Yi area after a 62-year-old woman became the second person in the building to catch the new viral disease. She lived 10 floors below the first infected resident, raising the question of whether the virus could spread through the building infrastructure, such as thru a pipe. Officials also found an unsealed pipe in the woman's bathroom. Likewise, some officials have questioned whether the rapid spread of the virus in New York City could be tied to the many residents who live in high-rise towers.
With this background, the stage is set for claims against property owners and managers for faulty pipes causing transmission of the virus. Apartment complexes, hotels and other property owners have never been strangers to litigation, and this may be a new chapter of an old story. By way of example, property owners have historically and routinely seen lawsuits for respiratory illnesses allegedly caused by the presence of mold. Likewise, hotels have seen numerous lawsuits across the country for negligent transmission of diseases such as Legionnaires’ disease caused by legionella bacteria that can be found in aquatic systems. Legionnaire’s disease is a form of pneumonia. Thus, a claim that a defective plumbing pipe spread the virus into an apartment or hotel room will fall in line with these cases that are routinely filed.
The cause of action will be a simple negligence case for failing to properly maintain the property and the plumbing pipes. Finding a maintenance defect in plumbing pipes or even negligent maintenance might not be too hard. However, as with any type of COVID-19 case, causation will be a difficult hurdle. How will a plaintiff prove that he or she got the virus from the building plumbing pipes? This will be a difficult task. Yet envision a plaintiff who is single and lives alone and has groceries delivered, essentially not leaving the apartment. Add to that other residents if the building coming down with COVID-19 at a high rate. If COVID-19 infects a person without outside contact and a high percentage of residents of a particular building come down with the virus, it seems the element of causation could be established.
In terms of damages, while it may seem it would be a temporary illness, there will be the probability of a significant number of wrongful death suits arising from the virus. Aside from wrongful death suits, the long-term effects of COVID-19 are still being determined. To date, there have been reports of permanent impairment to lung capacity in COVID-19 survivors and even lasting neurological effects such as dizziness, confusion and memory loss. Thus, these claims may be catastrophic in nature and not for a routine, temporary illness.
Regardless of the difficulty of proving causation, it is anticipated that there will be a significant amount of personal injury and wrongful death litigation stemming from negligent transmission of the virus. While employers may be the primary target, property owners and managers will likely be facing an influx of these types of claims.