Potential liability for failing to prevent the spread of COVID-19

On Sunday, March 15, 2020 Washington State Governor Jay Inslee banned all gatherings of over 50 people statewide in an attempt to slow the spread of COVID-19, the new coronavirus.  This measure is just one of many that have been imposed throughout the United States in the past weeks.  For example, essentially all sports have been suspended.  Of even more concern is the closure of restaurants and bars statewide.  Many hourly workers and small businesses are struggling through this new period of social distancing.  Schools have been temporarily closed and panicked shoppers have been clearing stores out of disinfectants and other supplies.

This isn’t the first time local governments have taken such drastic measures to slow the spread of disease.  During the Spanish Influenza outbreak the United States imposed significant restrictions to prevent and slow the spread of the disease.  For example, the Arizona Supreme Court upheld the Board of Health’s decision to ban public gatherings which resulted in mandatory school and business closures.  Globe School Dist. No. 1 v. Board of Health of City of Globe, 20 Ariz. 208 (1919).

With such drastic measures being taken to slow the spread of COVID-19, one question remains: who could face legal consequences for failing to adequately protect the public from contracting COVID-19?

A person is negligent in if they: (1) owe a duty, recognized by law, requiring the them to conform to a certain standard of conduct; (2) a breach that duty; (3) there is a causal connection between their conduct and the resulting injury; and (4) actual loss or damage.

It is possible that some one who contracts COVID-19 at a public or private business or event could claim the business owner or event organizer was negligent.  The law is not very clear as to what precautions must be taken.  It is still beneficial to take precautions if you are in a business that contacts a lot of individuals.  For example, having hand sanitizer stations set up at an event or shop, and signs posted reminding individuals to avoid touching their face and make sure to wash or sanitize their hands frequently.

If you are concerned about subjecting yourself or your business to legal liability during the COVID-19 pandemic, then speaking with a legal professional about potential ramifications may be in your best interest.

Washington Law grants health officials broad authority to control and prevent the spread of dangerous, infectious, or contagious disease.  RCW 70.05.060.  Courts generally recognize a duty imposed on the government to protect citizens from contracting infectious disease by city employees.  Anonymous Fireman v. City of Willoughby, 779 F.Supp. 402 (N.D. Ohio 1991).  Thus, local governments need to be cognizant of the risk that their employees who deal with the public could spread COVID-19 if infected.  Local governments are already taking measures to prevent that from occurring.

Employers should also be cognizant of the current COVID-19 pandemic.  An employer has a common law duty to provide a reasonably safe work place for employees.  McCarthy v. Department of Social & Health Servs., 110 Wash.2d 812, 818 (1988).  An employer might be negligent if they participated in the spread of COVID-19 in their place of work.  Thus, employers should review their procedures regarding sick leave, working from home, and should prevent any one showing symptoms of COVID-19 from physical contact with other employees.

Employers should speak to a qualified attorney if they have questions or concerns about how to limit their potential liability for the spread of COVID-19.

By: Christopher Browning, Jr.

Coronavirus (COVID-19) – Is a Pandemic a Force Majeure or Act of God?

On January 19, 2020, a 35-year-old man in Snohomish, Washington became the first confirmed case of the Coronavirus disease (COVID-19) in the United States.  Since then, the stock market has plummeted, public officials have recommended ‘social distancing,’ inventories on hand sanitizer and toilet paper have been depleted, and a slew of major events have cancelled.  The ripples of the now-official pandemic are felt all throughout society, including in Spokane, Washington, where the locally-loved Gonzaga Bulldogs were expected to compete in the NCAA tournament, which is now canceled.

Admittedly, every business, agency, and person should be responsible during this growing health crisis, but many are unsure of the economic and legal ramifications of their decisions.  This article sheds some light on the legal ramifications of the corona virus pandemic, specifically whether the virus allows a party to a contract to terminate the contract or invoke a force majeure clause.

An “act of God” is an unpreventable event caused by forces of nature, such as an earthquake, tornado, or flood.  A “force majeure” provides a defense to liability when a party is required to perform, fails to do so, and that failure is caused by a strike, war, or other event within its scope.  Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d 262, 268–69 (2005).  An act of God is often included as an event excusing performance in a force majeure clause.  See, id.

Whether the Coronavirus crisis excuses a party from a duty to perform is a fact-specific question that can only be answered on a case-by-case basis.  Some force majeure clauses specifically mention epidemics or quarantine restrictions.  See e.g., Gen. Injectables & Vaccines, Inc. v. Gates, 527 F.3d 1375, 1376 (Fed. Cir. 2008); E. Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 963 (5th Cir. 1976).  Other clauses may rely on the general definition of a force majeure and so applicability to the particular situation is less clear.  Some clauses may be drafted to only excuse one party from performance.  See Rembrandt Enterprises, Inc. v. Dahmes Stainless, Inc., C15-4248-LTS, 2017 WL 3929308, at *8 (N.D. Iowa Sept. 7, 2017) (egg producer claimed losses from Avian flu sufficient for frustration defense in argument over liability for purchase of new equipment, the court holding the force majeure only applied to performance by the equipment seller).

If you are concerned about the legal repercussions of breaching a contract due to the pandemic, the first place to look is the language of the contract.  Even if your performance may be excused, there may be additional duties to avoid liability, such as providing the other party notice.

Frustration or impracticability are additional defenses for a party’s non-performance if their breach of contract is not covered by a force majeure clause.  These defenses are very fact specific and tend to focus on the knowledge and intent of the parties at the time they entered into the contract.

If you or your organization are considering taking action in light of COVID-19 but are unsure of the legal risks, you should consider contacting a qualified attorney with experience in commercial transactions and litigation.

By:  Luke O’Bannan

Options for the Victim of Underinsurance

Many victims of catastrophic property damage or personal injury do not have insurance coverage that fully covers their damages.  Many people facing liability through a lawsuit for a catastrophic loss do not have insurance coverage that will fully cover their liability exposure.  These victims of underinsurance rightly fear being left out in the cold, bearing a disproportionate amount of responsibility for a major loss.

Although victims of underinsurance often feel stuck, there are many ways a savvy attorney with insurance expertise can help to navigate through a difficult situation.  Here are a few of the strategies utilized by experienced and knowledgeable insurance attorneys.


Maybe you were in a minor collision and the at-fault driver was uninsured, or maybe a family member tragically died and the negligent party that caused the death has very little insurance to cover the catastrophic loss.  In both situations, you are a plaintiff who faces the problem of underinsurance.

One of the first strategies used in this situation is to look at the assets of the person who is insured.  If that person or company has very little insurance but significant assets, then there is the possibility of recovering from both the insurance company and the at-fault party.  Asset investigations, property searches, and other methods can reveal additional sources for potential recovery.

Another strategy is to identify all parties who are potentially liable.  Was the at-fault driver who hit you a delivery driver that was working at the time of the accident?  If so, the driver’s employer may also be liable and may have insurance and/or assets to provide complete recovery.

Finally, another source of recovery may be your own insurance.  Automobile policies covering uninsured motorist (UM) and underinsured motorist (UIM) are designed to protect you from becoming a victim of underinsurance.  Under typical underinsured motorist coverage, your own insurance becomes liable for damages you suffered in excess of the insurance coverage of the at-fault party.  Cases involving UM and UIM claims can become very difficult to navigate due to the complexities of insurance law and it is always recommended to work with an experienced insurance attorney if you may have a UM or UIM claim.

For non-automobile related claims, a homeowner insurance policy may provide coverage, or an umbrella policy may provide coverage.  These policies are often complex and lengthy, with many exceptions that may apply to prevent coverage.  If you have questions regarding potential insurance coverage, seek the professional help of an insurance attorney.  Insurance companies often provide an opinion as to coverage, but you will want to have that opinion reviewed by your own attorney.


Maybe you were sued and sent the claim to your insurance company only to find there is no coverage or limited coverage under your insurance policy.  You may feel betrayed because the company who you have faithfully paid premiums to is now denying coverage.  Your insurance company, like any company, is in the business of making money and so will only pay for losses that are covered under your policy.  Many people purchase insurance without fulling understanding the terms of their policy, relying on the expertise of the insurance professional (usually an agent) who is selling the policy.

The primary concern of a defendant who is underinsured is the possibility of a judgment against them and subsequent collection actions.  First, it is important to assess whether or not there is a risk of personal exposure.  Experienced defense litigation attorneys can usually provide an analysis of the claims asserted against you and an opinion as to your exposure beyond the policy limits.  It is also important to make sure that claims have been tendered for all applicable insurance policies.  Individuals and companies may consider having a bankruptcy attorney provide them with an assessment of their assets and identify whether filing bankruptcy would protect those assets.  Finally, experienced litigation defense counsel can often develop a litigation strategy that serves to protect you or your company from liability beyond the limits of your policy.

Whether a plaintiff or defendant, any victim of underinsurance should know that there are options.  There are, of course, situations where no strategy will suffice and the outcome is fixed.  Nevertheless, it is important that you find an attorney who is able to explore every option and employ these strategies on your behalf.

By:  Luke O’Bannan

Benefits of Mediation

Parties to a lawsuit often realize very quickly that the process can become expensive, time consuming and stressful. At some point in the lawsuit, the parties often want to see if there is a way to resolve the case short of going to trial.  Mediation has become one way to facilitate the settlement discussions.

The parties agree on a mediator and then arrange a convenient time to attend the mediation. The mediation can take place at any agreed location, but usually the mediation is conducted at the mediator’s office. Each side explains to the mediator their position and the key areas where there is disagreement. The mediator meets with the lawyers and parties in order to get the “big picture” of the dispute. The mediator then works to help each side honestly consider the various potential outcomes. The costs versus benefits of achieving the hoped-for results is also evaluated.

Mediation allows the parties to fashion the settlement, whereas going to trial leaves the results in the hands of the jury. Mediation can be challenging, but most parties who have gone through the process agree that having a lawsuit resolved is well worth the effort and cost savings. Kirkpatrick & Startzel offers mediation services and is happy to answer any questions about the process.

By:  Paul Kirkpatrick

Significant Changes to Washington State’s Wrongful Death Law

On April 26, 2019, Washington Governor Jay Inslee signed into law sweeping changes to Washington’s wrongful death and survival statutes.  Since 1909, Washington State has recognized the right of certain family members to recover from the death of a spouse or child who died as a result of another’s negligent or intentional act.  However, those statutes limited the rights of the parents or siblings of an adult who died to assert a claim for wrongful death unless the parents or siblings could prove they were financially dependent upon their loved one.  This 110-year requirement of proof of financial dependence led to numerous cases of injustice.  As an example, if an 18-year-old young man or woman was driving home from their high school graduation, assuming he or she was unmarried and had no children, and is killed by the negligent acts of another, the parents of this recent high school graduate would have no recourse for justice.  Additionally, if the recent high school graduate was a foreign exchange student, his or her parents would also not be able to bring a wrongful death action as the old law required residency in the United States at the time of their adult child’s death.  The new amendments now provide a legal remedy for the parents and siblings of the decedent.

Specifically, the new law, which takes effect in July of 2019, provides the following changes:

  • Parents and siblings now have a right to bring a wrongful death action for adult children when that child is unmarried and has no children, regardless of financial dependency;
  • There is no longer a requirement that in order to bring a wrongful death action, a parent or sibling must reside in the United States at the time of the person’s death;
  • The available general, or non-economic, damages now include the decedent’s pain and suffering, anxiety, emotional distress, and/or humiliation.

These changes to the wrongful death and survival action statutes will apply retroactively to all claims that are not barred by the applicable statute of limitations, including any claims currently pending in a court when the new law becomes effective.

By: Patrick Harwood


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