August 3, 2020

Can you sue for “fear” of contracting the coronavirus (COVID-19), even if you don’t test positive for the disease or exhibit any symptoms?  A federal court in the Central District of California recently considered this question, and held that you cannot.

Thirteen lawsuits were filed against Princess Cruises by passengers relating to the ill-fated journey of the Grand Princess, which originally departed from San Francisco for Hawaii on February 21, 2020 with over 3,500 passengers and crew.  After departure, 21 people on board tested positive for COVID-19, and many more were afraid they had been exposed to the disease.

The first passengers to file a lawsuit against the cruise line were Ronald and Eva Weissberger, who alleged negligence for failing to take the necessary precautions or employing proper safety screening protocols, and sought over $1 million in damages for putting their health at risk and causing emotional distress.  Several other lawsuits alleging similar claims were filed soon thereafter.  Notably, none of the plaintiffs had tested positive for COVID-19 or manifested any symptoms.  Instead, the theory of liability rested on the plaintiffs’ fear of contracting the disease while on board.  These cases were therefore dubbed the “fear cases.”

Since the events took place on a vessel on or over navigable waters, federal maritime law applied to the plaintiffs’ claims.  Even though the plaintiffs alleged claims for negligence, the court found the claims were actually claims for negligent infliction of emotional distress.  In order to succeed on a claim for negligent infliction of emotional distress under federal maritime law, a plaintiff must either sustain a physical impact as a result of the defendant’s negligent conduct or be placed in immediate risk of physical harm by the defendant’s negligent conduct (such as a near-miss accident).  [Consolidated Rail Corp. v. Gottshall (1994) 512 U.S. 532, 547-548; Stacy v. Rederiet Otto Danielsen, A.S. (9th Cir. 2010) 609 F.3d 1033, 1034-1035.]

The plaintiffs claimed they were in immediate risk of physical harm, or the “zone of danger,” because their health and safety was put at risk by the cruise line allowing them to board, even though passengers disembarking the same day from a prior cruise exhibited COVID-19 symptoms.  Princess Cruises pointed out that none of the plaintiffs actually contracted the disease or exhibited symptoms.

The court agreed with Princess Cruises, holding that the plaintiffs couldn’t recover for negligent infliction of emotional distress based simply on proximity to others on the ship diagnosed with COVID-19 and the resulting fear of contracting COVID-19 themselves.  Mere exposure wasn’t enough, without contracting the disease or exhibiting symptoms.  (However, the court did suggest individuals could recover if they contracted COVID-19 and/or manifested symptoms.)  The court dismissed all the cases with prejudice, since the plaintiffs weren’t passengers anymore and there was no longer any risk of contracting the disease onboard.

It is unknown if this decision will carry any weight for claims brought under state law for negligent infliction of emotional distress, but considering this case was heard and decided in the Central District of California, a place generally friendly to plaintiffs, commentators believe pursuing such claims will now be an uphill battle for plaintiffs.

Allowing such lawsuits might also lead to a “flood of trivial suits, and open the door to unlimited and unpredictable liability,” as the Central District of California court warned in its dismissal.  Recognizing a claim for emotional distress absent any physical harm could open up businesses and schools to lawsuits from anyone who had been on the premises at the same time as someone later found to have contracted the virus.

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This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.