Examples Of COVID-19 Wrongful Death Lawsuits
In her recently published legal alert, Fisher Phillips attorney Chantell Foley discusses new lawsuits about wrongful death actions. (The full alert can be viewed here.)
The article goes on to say, as COVID-19 cases and deaths continue to rise, so too does the number of COVID-19 lawsuits filed against employers. Recently, an increasing number of families of employees who died from COVID-19 have asserted wrongful death actions against employers for failing to keep their family members safe while at work. What can employers learn from these lawsuits to not only keep their workers safe but avoid being on the receiving end of such a claim?
Examples Of COVID-19 Wrongful Death Lawsuits were noted
Throughout the country, employers are starting to be served with wrongful death lawsuits alleging an employee’s exposure to COVID-19 at work could lead to employer liability, despite the asserted general rule that the workers’ compensation system is the exclusive remedy for such claims.
Several law suits were given as examples against employers by families of deceased workers:
Lanzo v. Generations Behavioral Health
The wife of Raymond Lanzo, an employee working as a nurse at a mental health facility, alleged wrongful death under Ohio law. In support of her claim, Ms. Lanzo said through her attorney that the mental health facility failed or refused to follow COVID-19 directives issued by the state in order to reduce the spread of the virus and exposed her husband to COVID-19.
The complaint does not claim the facility was wrong due to operating during the pandemic, but that Generations Behavioral Health failed to implement the policies and procedures that it should have in place to follow the state’s pandemic directives. Ms. Lanzo further alleged that the company was “negligent” in its failure to provide “appropriate safety equipment.” Other allegations in the complaint said that the mental health facility’s conduct was “wanton and willful”. Ms. Lanzo is seeking more than $25,000 in damages, including medical bills and funeral expenses.
Norwood v. Rodi Marine LLC
Ms. Norwood, the wife of Michael Norwood, who was a crew member aboard a supply vessel owned and operated by Rodi Marine. In March and April 2020, the vessel reportedly was located at the Austal Marine facility in Mobile, Alabama.
Following Michael Norwood return, from a work assignment, he reportedly fell ill. Although it appears that the vessel captain sequestered himself in his quarters for two to three days until Rodi Marine was told of his illness. The company then removed the captain from the vessel for testing, which revealed that he had COVID-19. Mr. Norwood returned home when the captain was removed from the vessel and was isolated from contact with others except for his wife, when Mr. Norwood too fell ill. He succumbed to the virus despite medical treatment.
The lawsuit alleged that Rodi Marine negligently caused Norwood’s death because they did several things wrong: (1) failing to provide Norwood with a safe workplace; (2) failing to implement policies and procedures to protect the crew from COVID-19; (3) failing to train vessel crew members regarding the actions necessary to prevent contracting and spreading COVID-19; (4) allowing the vessel captain to remain aboard the vessel while infected with COVID-19; and (5) permitting the vessel captain to travel to New Orleans when it was on “lock down” and known to be a COVID-19 hotspot.
Elijah v. Port Authority Trans-Hudson Corporation
Ms. Elijah, the wife of a deceased power rail mechanic for a rail carrier, filed her wrongful death lawsuit under New Jersey law. Ms. Elijah alleged her husband was exposed to COVID-19 when he embraced a co-worker who later tested positive for COVID-19. Mr. Elijah was not wearing a mask because, the law suit says, his employer allegedly “instructed its workers at safety meetings not to wear masks at work unless they were performing their specific job functions.”
Approximately 10 days after being exposed, Mr. Elijah began to experience symptoms of COVID-19, which progressively worsened. The complaint alleges that Mr. Elijah was hospitalized, and experienced a “horrible and protracted death.”
The law suit alleges that Port Authority Trans-Hudson Corporation was negligent for several reasons: (1) failing to provide employees with a safe place to work; (2) failing to properly train employees about contracting COVID-19 at work; (3) failing to timely provide PPE to employees; (4) failing to conduct contact tracing; (5) failing to test employees for COVID-19; (6) failing to timely quarantine decedent and other employees who had been exposed to COVID-19; (7) failing to apply social distancing measures for employees; (8) failing to properly clean areas; (9) failing to warn employees of the dangers of contracting COVID-19 at work; (10) failing to medically treat the decedent; and (11) failing to follow its own safety rules, practices, and procedures.
If you are an employer, how can you defend yourself against such lawsuits?
Certainly, as an employer you need to take reasonable measures, based on then-existing guidance, to do its best to prevent the spread of COVID-19 in the workplace. Critical evidence will certainly be the timing of any COVID-19-related precautionary safety measures, including policies and procedures. In this constantly changing environment, deciding which actions to take, when is not easy. But, the more effort an employer makes toward providing for the safety of its workers, the stronger their defense.
A collection of best practices to keep in mind, include what to do as an employee and as an employer. The author of the artile outlines the following:
- Follow the CDC's Interim Guidance for Businesses, including best practices for social distancing, Guidelines for Cleaning and Disinfecting the workplace, and quarantining employees who have an exposure to a confirmed COVID-19 case, found at the CDC’s Public Health Recommendations for Community Exposure. Also, send employees who are symptomatic home until released by a medical professional or until they meet the guidelines for discontinuing self-isolation.
- If you are an essential business employing critical infrastructure workers, the CDC has adopted different guidelines to follow, including allowing asymptomatic employees who have had a direct COVID-19 exposure to continue to work as long as certain guidelines are met.
- Utilize OSHA’s most recent guidelines as a resource when creating return to work plans and policies. OSHA’s directives on implementing the identified guiding principles and FAQs may assist employers in safely reopening their businesses and workplaces. While the guidance is in the form of non-mandatory recommendations, OSHA has stated that an organization’s good faith efforts to comply with its recommended guidance will be taken into “strong consideration” when determining whether to cite violations and has indicated the General Duty Clause may be the basis for violations if employers do not engage in such good faith efforts. Such citations could also be evidence of an employer’s failure in a civil lawsuit.
As a forensic psychologist and economic loss specialist, Dr. Manges has testified about many wrongful death matters over his 40+ year career. Questions about the inclusion of an expert like Dr. Manges? Please give us a no obligation call (513) 784-1333 or send us an email (manges@drmanges.com) so we can help. In the meanwhile, stay safe, wash your hands and follow the CDC guidelines.
