Fear of contracting COVID-19, without more, is insufficient to state a claim for negligent infliction of emotional distress, according to one federal court. In Weissberger et al. v. Princess Cruise Lines, the court held that permitting fear-based emotional distress claims would lead to “bizarre results” and unpredictable and unlimited liability. ABA Section of Litigation leaders believe that the plaintiffs may have had a viable claim with better facts and that the court expressed legitimate public policy concerns.
COVID-19 Outbreak on Cruise Ship Leads to Suit for Emotional Distress
The Grand Princess cruise ship departed from San Francisco for Hawaii on February 21, 2020, at the beginning of the COVID-19 pandemic. Onboard were 62 passengers continuing from the ship’s prior voyage to Mexico. While en route to Hawaii, the cruise staff informed the 62 Mexico passengers that they had potentially been exposed to COVID-19, as two persons from the earlier leg of their trip had disembarked in San Francisco with COVID-19 symptoms. By March 6, 2020, 21 people aboard had tested positive for COVID-19. On March 9, 2020, the ship docked at the Port of Oakland.
The same day, plaintiffs Ronald and Eva Weissberger sued the cruise line for negligence and gross negligence in the U.S. District Court for the Central District of California. The plaintiffs alleged the cruise line breached its duty to keep passengers safe by failing to properly screen passengers or warn them of possible exposure to COVID-19. Though the plaintiffs did not contract the virus or exhibit any of its symptoms, they alleged that they had suffered emotional distress from fear of becoming infected. The defendant moved to dismiss, arguing that the plaintiffs had failed to allege that they were in the “zone of danger” for contracting the virus.
Plaintiffs Must Contract Disease or Exhibit Symptoms to State a Claim
At the outset, the district court construed plaintiffs’ negligence claims as one for negligent infliction of emotional distress (NIED) due to the lack of alleged physical damages. It then applied federal maritime law, which requires a plaintiff to satisfy one of two prongs of the zone of danger test to recover damages for NIED. Specifically, a plaintiff must either (1) “sustain a physical impact as a result of a defendant’s negligent conduct,” or (2) be “placed in immediate risk of physical harm from that conduct.”
The court dismissed the complaint with prejudice. It concluded that the plaintiffs failed to satisfy the zone of danger test because their claim could not be “based solely on their proximity to individuals with COVID-19 and resulting fear of contracting the disease.” In so holding, the district court relied upon the U.S. Supreme Court’s ruling in Metro-North Commute R. Co. v. Buckley. Metro-North held that a plaintiff must exhibit symptoms of the feared disease to recover for NIED, and that “exposure . . . to a substance that poses some risk of fear of future disease” alone did not fulfill the first prong’s requirement of a “physical impact”. Because the plaintiffs had no COVID-19 symptoms, the plaintiffs did not satisfy the test’s first prong.
The district court also rejected plaintiffs’ argument that COVID-19 symptoms were unnecessary to satisfy the second prong. Noting that the second prong’s requirement of “immediate risk of physical harm” most commonly applied to “near miss” collision cases, the court declined plaintiffs’ invitation to extend the second prong to disease-based emotional distress claims. It pointed out that under plaintiffs’ interpretation, “it would be possible to sneak in through the back door what the Court [in Metro-North] expressly forbade from coming in the front.” The court observed that “the exception would swallow the rule” because a passenger could circumvent the first prong’s requirement of physical symptoms simply by “cleverly” pleading a claim under the second prong.
Additionally, the district court cited public policy concerns in limiting disease-based emotional distress claims to those where physical symptoms had manifested. It reasoned that permitting “exposure only” claims would present the dangers of fraud, “a flood of trivial suits”, and “unlimited and unpredictable liability.” The court further “decline[d] to carve out the cruise-ship industry from Metro-North’s mandate”, noting that the risk of COVID-19 exposure extended to many other industries, and that making an exception would be “at odds” with the Supreme Court’s ruling that “case-by-case determinations of negligence are not an adequate guard against unlimited and unpredictable liability.”
Section Leaders Agree Fear Is Not Enough
Section of Litigation leaders believe that if the plaintiffs had had better facts, the may have had a viable claim. “The only thing that could have saved their pleading was an allegation that they were symptomatic or developed COVID-19, and those facts simply were not there to be pled in good faith,” says Joshua F. Kahn, Baltimore, MD, cochair of the Section’s Mass Torts Litigation Committee’s Subcommittee on Multi-District Litigation and Class Procedures.
Section leaders also agree that permitting fear-based emotional distress claims would lead to unpredictable and unlimited liability. “We would all have a potential tort claim against our employer, restaurant we visit, public transportation, school, or other service provider where there was some potential risk of exposure to COVID-19,” observes Sidney W. Degan, III, New Orleans, LA, cochair of the Section’s Admiralty Litigation Committee.
Andrew K. Robertson is a contributing editor for Litigation News.
Hashtags: #COVID-19, #TortLitigation, #NIED, #coronavirus, #cruise
- Jenny B. Davis, “Coronavirus on board: Lawyer's parents were trapped on a contaminated cruise ship,” ABA J. (June 1, 2020).
- Debra Cassens Weiss, “Causation is an issue in suits against cruise lines by passengers who contracted COVID-19,” ABA J. (Sept. 11, 2020).
- Jenny B. Davis, “Suing a cruise line? There are a boatload of challenges unique to the industry,” ABA J. (June 1, 2020).
- Consol. Rail Corp. v. Gottshall, 512 U.S. 532 (1994).
- Nelson v. Metro-N. Commuter R.R., 235 F.3d 101 (2d Cir. 2000).
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