Months after a cruise ship was forced to dock amid a coronavirus outbreak on board, some of the passengers allegedly traumatized by that experience will not find any safe harbor with the courts.
Central District of California Judge R. Gary Klausner dismissed the cases filed by a slew of Grand Princess passengers, saying that while they may have shared the boat with approximately 3,500 other people — including 21 who contracted COVID-19 — but they were not in the legal “zone of danger” to recoup on claims of emotional distress.
The ruling hinged on the ‘zone of danger’ test, which awards plaintiffs for emotional injury when they can show ‘physical impact’ due the defendant’s negligence.
The decision by Klausner, who was appointed to the federal bench during George W. Bush’s administration, is one of the first to weigh in on whether people can assert emotional distress for exposure to the coronavirus if they don’t contract the virus, observers say.
And the ruling arrives at quite a moment.
As lawsuits pile up for all sorts of problems related to the coronavirus outbreak, Republican lawmakers want to tie another round of financial stimulus to liability shields for businesses, health-care providers and schools.
If businesses have to cope with a deluge of cases, they might support a liability shield to avoid big legal costs or hits to their public image, said Carl Tobias, a professor at the University of Richmond School of Law. But when it comes to jurisprudence, businesses, on balance, may have “enough protection in the law as it presently exists,” he added.
The Grand Princess started its voyage on Feb. 21, bound for Hawaii. By March 9, it docked in Oakland, Calif., with 21 confirmed coronavirus cases.
Attorneys for two passengers, Ronald and Eva Weissberger, filed a negligence lawsuit against Princess Cruise Lines
while they were still aboard the cruise. Ultimately, the Weissbergers did not test positive for the virus and didn’t suffer symptoms, Klausner noted.
Other passengers who also didn’t contract the virus sued Princess Cruise Lines over their fears of infection in more than 10 similar lawsuits. There were approximately 50 plaintiffs in those cases. Sickened passengers and the survivors for several deceased passengers also have pending lawsuits against Princess Cruise Lines.
If passengers prevailed, attorneys for the company said ‘businesses, school, churches and other venues across America will be forced to keep their doors closed long after state stay-at-home orders are lifted.’
“We are grateful for the court’s decision which is consistent with established legal precedent,” the company said in a statement. A company spokesperson said Princess looked forward to “once again serving the millions of guests.”
Ahead of Klausner’s decision last week, Princess Cruise Lines’ attorneys said the cases weren’t just about one ill-fated voyage. “Plaintiffs’ claims threaten the ability of businesses to reopen and for the economy to resume,” lawyers said in court papers.
If the passengers prevailed, the attorneys said “businesses, school, churches and other venues across America will be forced to keep their doors closed long after state stay-at-home orders are lifted, lest they risk crushing liability to each and every one of their invitees for emotional distress, based on the mere possibility of infection.”
That was an extreme argument, according to the passengers’ attorneys. But Klausner said he did not believe that fears of unlimited liability are overblown. “The risk of exposing individuals to COVID-19 is not unique to cruise ships — quite the contrary,” he said.
‘It’s limited to negligent infliction of emotional distress under maritime law, and that’s as far as it goes.’
— Christopher Kende, a member at Cozen O’Connor
The ruling hinged on the “zone of danger” test. The legal test awards plaintiffs for emotional injury when they can show “physical impact” because of the defendant’s negligence, or when they can show “immediate risk of physical harm by that conduct.”
Passengers said they were at immediate risk of harm, but Princess Cruise said a 1997 Supreme Court decision about a worker’s asbestos exposure shut down the argument. The 1997 ruling said plaintiffs needed to allege they contracted a disease or showed symptoms before they could successfully sue.
Experts were split whether the decision carried broader significance.
The decision was notable because it was one of the first on the question of emotional distress over coronavirus exposure, said Christopher Kende, an attorney with the Philadelphia-based law firm Cozen O’Connor, who represents ship owners, airlines and insurers. But it was just one decision, he said.
“It’s limited to negligent infliction of emotional distress under maritime law, and that’s as far as it goes,” Kende said — but it’s possible a different court could also take a broader view, he added.
‘If you can’t win in California, or have a shot in California, that makes it tough.’
— Carl Tobias, professor at the University of Richmond School of Law.
As the pandemic continues, Tobias said there could be “plenty of people” thinking about suing over worries about exposure. The decision in the Grand Princess lawsuit could make it a more difficult case. “It’s not to say they couldn’t win, but they have to show more than an ‘abstract’ notion they were afraid,” Tobias said.
It was notable the ruling came down in California because the state’s judiciary has historically been friendly to plaintiffs, Tobias added. “If you can’t win in California, or have a shot in California, that makes it tough.”
Debi Chalik, lead attorney for the plaintiffs and other Princess Cruise Line passengers with pending cases, said she was disappointed, but decided not to appeal the decision. “I don’t think allowing the case to go forward would in any way open any kind of door to incessant litigation.”
Many consumers might not have the appetite for legal fights, one poll suggests: 70% of people said they would not sue if exposed to COVID-19, according to a Yahoo Finance and the Harris Poll conducted this month with 2,094 people, while 66% said they wouldn’t consider a case against their employer if exposed to the virus on the job.