A current topic of debate is whether a person behaving irresponsibly should be held liable for infecting another with COVID-19.
Mass vaccination programs around the country have gone a long way toward protecting us, with Bloomberg Law recently reporting that more than 60 percent of U.S. adults have gotten the vaccine. Nevertheless, huge numbers of eligible people have refused to get vaccinated, and many who are ineligible, such as children under 12 years of age, remain at risk. Meanwhile, the Delta variant is spreading rapidly. As of the end of July 2021, it made up more than 80 percent of new COVID-19 cases in the U.S, according to the Centers for Disease Control and Prevention (CDC).
The CDC also recently reversed its mask-wearing guidance, while some restaurants and other public spaces are requiring patrons to show proof of vaccination before they are allowed inside. Safety remains as paramount now as it was at the start of 2020.
Even so, there are plenty of Americans who choose to behave irresponsibly in various respects, such as refusing to get vaccinated and refusing to wear a mask when in proximity to others in closed quarters. This brings liability back to the forefront of the COVID-19 discussion. The major question is this:
If someone knows they are infected with COVID-19 and engages in conduct that exposes others to a risk of infection, can they be held liable for transmitting the disease?
As KDLM partners Thomas Moore and Matthew Gaier recently wrote in their medical malpractice column, there is both modern and historical precedent supporting that notion. In fact, a long line of court decisions dating back to the Civil War era suggests that someone who intentionally, recklessly, negligently or by fraudulent misconduct transmits a contagious disease to another can be held liable. COVID-19 and its variants should be no exception. Persons who know or reasonably should know that they are infected and choose to go near others, in close quarters, without so advising them and without wearing a protective mask or taking other precautions, may be subject to liability to someone they infect.
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