Negligent Failure to Warn Claims Against Retailers Shipping Products During COVID-19June 11, 2020 – Article
A retailer’s employee is handling products being shipped out to customers. The employee later learns they were COVID-19-positive at the time and notifies the employer. Can a customer who tests positive for COVID-19 and claims the product is their only exposure file a negligent failure to warn claim?
Of course, such a claim requires a plaintiff to prove the retailer defendant owed the plaintiff a duty of care, that the retailer defendant’s failure to warn breached that duty, and that the failure caused the plaintiff’s injuries. Beyond the basic elements of a negligence claim, a host of COVID-specific issues arise.
COVID-19 Guidance and Research are Constantly Changing
Research on COVID-19 is rapidly evolving. Just this week, the World Health Organization (WHO) announced that asymptomatic transmission of the virus was “very rare” and then backtracked the next day. Dramatic reversals in expert guidance have been widely documented and have covered every topic from surface transmission to mask wearing.
The moving of the goal posts raises questions about potential liability, particularly breach of duty. Some of these issues will have to work their way through the courts. At this time, it is unclear, for example, whether an employee not wearing a mask at work would constitute negligence, gross negligence, or perhaps neither. With constantly changing research on asymptomatic spread and surface transmission, business owners should be careful to follow CDC and WHO guidelines to attempt to prevent transmission of the virus.
In addition to the changing virus research, state laws are in flux as some contemplate or institute civil liability immunity for COVID-19 claims against various types of businesses. North Carolina’s law provides limited immunity to “essential businesses” as defined by executive order. Oklahoma, Utah, and Wyoming passed bills providing broad immunity against COVID-19 liability. Immunity does not apply in cases of gross, willful, or intentional misconduct.
Establishing causation in these cases will likely require two a plaintiff to prove two elements: 1) that the plaintiff contracted COVID-19 from the retailer defendant’s package or product, and 2) that the retailer defendant’s failure to warn of potential exposure caused the plaintiff to contract the virus. Meeting this threshold would most likely require the plaintiff to retain expert witnesses, and their testimony would likely be speculative. Of course, retailer defendants should verify that any plaintiff actually tested positive for COVID-19.
We are unable to predict the course of COVID-19 litigation, but the best practice for now is to follow CDC guidance. Retailers should take all necessary precautions to stay up-to-date and comply with federal and state regulations, bearing in mind that even if your state has passed a civil immunity bill, it does likely not apply in cases of willful or intentional misconduct or gross negligence.
Hawkins Parnell & Young's national litigation team is helping businesses across the United States navigate unprecedented legal challenges arising from the COVID-19 pandemic. Visit our COVID-19 Resource Center for the latest insights and guidance.
 “Unpacking the New WHO Controversy Over Asymptomatic COVID-10 Transmission,” TIME, June 9, 2020. https://time.com/5850256/who-asymptomatic-spread/
 COVID-19 Recovery Act, Session Law 2020-3, Section 4.14(a). https://www.ncleg.gov/Sessions/2019/Bills/Senate/PDF/S704v6.pdf
 Senate Bill 1964. http://webserver1.lsb.state.ok.us/cf_pdf/2019-20%20INT/SB/SB1946%20INT.PDF
 Utah Code § 78B-4-517. https://le.utah.gov/~2020S3/bills/static/SB3007.html
 Wyoming Senate File 1002. https://wyoleg.gov/2020Sp1/Enroll/SF1002.pdf