From: John Kleefeld <john.kleefeld@unb.ca>
Sent: Friday 4 December 2020 13:01
To: Wright, Richard; Obligations list
Subject: Re: Superspreader Liability
Richard, in addition to the points you’ve raised, we
need to consider potential legislative responses.
One type of response is to limit liability or immunize
certain kinds of defendants from liability altogether. On what Ontario and
British Columbia are doing in this regard, including limits on the degree to
which defendants may be immunized, see, for example, this
article.
Another, very different, type of response might be for
state and provincial governments to pass legislation authorizing them to bring
actions to recover the health care costs associated with COVID-19. I’m thinking
of British Columbia’s Tobacco
Damages and Health Care Costs Recovery Act and various state and
provincial analogues. Such legislation, the constitutionality of which has been
hard-fought, allows for the use of epidemiological evidence to establish
causation and quantify damages or cost. In other words, governments themselves would
sue the alleged super-spreaders, using the benefit of a legislated cause of
action that relaxed standards of proof. I’m not aware of any current initiative
in this regard, but I expect that policy and legislative analysts are being
asked to consider it.
Finally, on this topic, albeit from a constitutional
viewpoint, Erwin Chemerinsky has written an
article about the recent USSC ruling in Roman Catholic Diocese of
Brooklyn, New York v. Cuomo (the article contains a link to the case).
Yours truly,
|
JOHN C. KLEEFELD Professor,
Faculty of Law University
of New Brunswick PO Box 4400 41 Dineen Drive, Room 104 Fredericton NB Canada E3B 5A3
506.453.4701 |
|
|
From: "Wright,
Richard" <rwright@kentlaw.iit.edu>
Date: Thursday, December 3, 2020 at 9:16 PM
To: Obligations list <obligations@uwo.ca>
Subject: Fwd: Superspreader Liability
✉External
message: Use caution.
I meant to include the ODG list in my message below.
---------- Forwarded message ---------
From: Wright, Richard
<rwright@kentlaw.iit.edu>
Date: Thu, Dec 3, 2020 at 6:56 PM
Subject: Superspreader Liability
To: <TORTSPROF@listserv.unl.edu>
Cc: Christopher J. Robinette <cjrobinette@widener.edu>,
Private Law Theory <s.hedley@ucc.ie>,
David Cheifetz <dcheifetz@gmail.com>
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?