COVID-19 and Proximate Cause: Will “Probable Cause” Suffice?

November 25, 2020Article

Earlier this week, plaintiffs filed a wrongful death action against Publix Supermarkets, one of the nation’s largest supermarket chains, claiming their decedent father, Gerardo Gutierrez, aged 70, contracted COVID-19 while working at one of Publix’s Miami Beach locations. (Ariane Gutierrez v. Publix Super Markets, Inc., 11th Judicial Circuit, 2020-025168-CA-01).

Plaintiffs allege that Publix failed to exercise proper care in setting forth proper precautions in protecting its employees. More specifically, plaintiffs allege that Publix instructed its employees not to wear masks or gloves so that its customers would not panic, and that several other Publix stores had been notified by OSHA that it had received complaints from employees of being told not to wear personal protective equipment.

According to the complaint, at the outset of the pandemic, Mr. Gutierrez requested permission to wear a mask or gloves and was rebuffed by Publix. In late March of this year, Mr. Gutierrez worked at Publix’s deli counter alongside a co-worker who was exhibiting symptoms consistent with COVID-19, including coughing. They further claim that Publix was aware of the co-worker’s symptoms, that she was not wearing a mask and yet did not send her home and permitted her to continue working. The co-worker later tested positive for COVID-19. Mr. Gutierrez was then sent home on April 2 to self-isolate based upon his contact with the co-worker. Four days later, Publix began allowing all employees to wear reusable cloth masks. On April 7, Mr. Gutierrez tested positive for COVID-19; three days later, he was hospitalized, and on April 28, he passed away.

One of the central issues to this case will be proximate cause – can plaintiffs prove that Mr. Gutierrez actually contracted COVID-19 from the co-worker? Do they even need to? Assuming that Mr. Gutierrez came into contact with other people during his general day-to-day – many of whom could very well have also exhibited symptoms of COVID-19 or otherwise been asymptomatic – it may be nearly impossible to prove conclusively that the co-worker was in fact the one who transmitted the disease to him. Is this enough to save Publix from liability? Or will it be enough for plaintiffs to simply show that the co-worker probably was the one who transmitted the disease to Mr. Gutierrez?

In Florida at least, where this case is venued, if plaintiffs can show that Publix’s supposed negligence probably caused him to contract COVID-19, it will at least likely be enough to fend off Publix’s motion for summary judgment. See, e.g., Sanders v. ERP Operating Ltd., P’ship, 157 So.3d, 273, 277 (FL 2015) (“Whether or not proximate causation exists is a question of fact,” and plaintiffs in negligence actions are required to show that “the negligence probably caused the plaintiff’s injury”). As discovery progresses, defendant Publix will want to determine whether Mr. Gutierrez could have contracted COVID-19 from another source, which will impact plaintiff’s burden to prove that it was “more likely than not” that Publix’s actions caused Gutierrez to contract the disease. See, e.g., Gooding v. University Hospital Bldg., Inc., 445 So. 2d 1015, 1018 (FL 1984) (“Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury”).

It is likely that business owners and employers can expect to see more of these lawsuits. How this particular case develops will obviously depend on facts which have yet to be discovered. However, with respect to proximate cause, the likely scenario is that the Florida court will not require plaintiffs in actions like these to conclusively prove beyond any possible doubt that Mr. Gutierrez contracted COVID-19 from his co-worker at the deli counter.

This action has a parallel to toxic tort matters, particularly those involving allegations of exposure to asbestos. In those actions, where latent asbestos-related diseases do not manifest until decades after asbestos exposure, plaintiffs in jurisdictions all over the country have dependably been able to rely on probable causation and the “more likely than not” standard. Although not always able to precisely quantify or link their disease to a specific product or work, plaintiffs nevertheless are often successful in escaping summary judgment and convincing juries that a particular product caused their disease. The proofs of COVID-19 exposure in cases such as the one involving Mr. Gutierrez will likely be similar, and business owners, employers, and attorneys should approach these cases with these standards in mind.

Authors: Mark K. Hsu (Partner, New York), David E. Freed (Associate, New York)