David Cheifetz recently posed to me the very interesting question of liability of organizers and participants in superspreader events (e.g., Trump rallies and White House events, unrestricted church gatherings, privately organized parties) for subsequent adverse Covid-19 effects suffered by participants or others.

I initially thought this was a very interesting topic to explore academically and practically. Defendants' liability raises interesting issues regarding factual and legal causation (as well as apportionment of liability), given other possible sources of a victim's Covid-19 related injuries and various methods used by courts to nevertheless find factual causation or at least legal responsibility if the defendant's wrongful conduct at least doubled the risk of injury (as in the toxic tort and medical malpractice cases in many states) or materially increased the risk (as in medical malpractice cases in many states).

However, it subsequently occurred to me that this issue was not worth spending my time on it academically or practically, given the contributory negligence and especially assumption of risk (consent) defenses available to the defendant. It is highly unlikely that any court would find that those who participated in these events were irrational persons or failed to understand the objectively clear risks due to intentional or negligent misrepresentation by the defendant or others (although I believe this to be true). Adversely affected non-participants would not be subject to these defenses, but would have greater proof problems regarding causation.

Your thoughts?