The limited success of cruise line Covid-19 lawsuits showcases the high bar consumers must meet to hold businesses liable for alleged virus exposure, suggesting they can overcome legal hurdles—but only in the right circumstances.
Cruise ship passengers filed at least 42 lawsuits in federal court alleging injuries—ranging from emotional distress to death—due to exposure to Covid-19, an analysis of Bloomberg Law data shows. About 15% of those cases have settled on undisclosed terms, and 40% of them have been dismissed. None have advanced to trial.
The data highlight the long odds consumers face to win such lawsuits in less confined environments than a cruise ship. The pervasive presence of the virus makes it very difficult to prove that spending time at a specific business caused a consumer to get sick, legal observers say.
“The cruise cases have probably the easiest circumstances to prove causation, but even in that context, they’ve not had much success,” said Christopher Robinette, a professor at Southwestern Law School who focuses on tort law. “If you can’t prove it after being on a ship for two weeks, how can you prove it after you went into a restaurant to have a sandwich for half an hour?”
Covid-19 liability shields enacted in 30 states provide businesses with additional protection from exposure suits.
Even with legal guardrails in place, however, companies are taking steps to mitigate the risk of lawsuits by displaying in-store signs about masks and having some customers sign waivers. Still, collecting personal information comes with its own legal risks if that data is mishandled, so companies should act cautiously and only take in what’s necessary, attorneys say.
There have been more than 38 million confirmed Covid-19 cases in the U.S., according to the Bloomberg virus tracker. The CDC recommended on Aug. 20 that people who are at high risk of severe illness from Covid-19 avoid cruise ship travel regardless of vaccination status.
A 77-year-old woman recently died from Covid-19 after testing positive while traveling with the Carnival Vista cruise ship, making her death the first one reported since cruises restarted in the U.S. in June.
‘Out and About’
To prevail in coronavirus cases, consumers generally have to show that businesses breached their duty to protect their customers from exposure to the virus and that the exposure caused them harm.
Consumers will have an especially difficult time proving causation given the ease at which the delta virus variant can spread and the challenge of pinpointing exactly where the person may have picked up the virus, attorneys say.
Imagine a person suing a restaurant for alleged virus exposure that caused Covid-19, said John Goldberg, a Harvard Law School professor who specializes in tort law. Suppose evidence shows that person also went to a grocery store, a big-box retailer, and a party with 10 other people in the same period as the restaurant visit, he said.
“How do we know it’s the restaurant, especially with delta being so transmissible?” Goldberg said. “I’m not saying it’s impossible to prove, but it’s definitely going to be a challenge for people who are out and about in the world.”
The Covid-19 liability shield laws that passed in Texas, Florida, Ohio, Georgia, North Carolina, and 25 other states make it even more difficult for consumers to win in court. The person suing must prove gross negligence, willful misconduct, or failure to follow public health orders, depending on the standard specified in each state’s law.
But those liability shields laws don’t protect cruise lines because state laws generally don’t apply in the maritime context, said Michael Winkleman, an attorney with Lipcon Margulies & Winkleman P.A. who represents cruise ship passengers in coronavirus lawsuits.
Limiting Liability, Protecting Data
Despite the advantages public-facing companies have in virus exposure lawsuits, they are taking steps to mitigate liability and avoid lawsuits in the first place, attorneys said.
Noticeable efforts to keep a store or restaurant clean and signs highlighting pandemic safety can make a company less likely to be the target of customer litigation, said Alden Parker, co-chair of Fisher & Phillips LLP’s hospitality industry group.
Signs encouraging the unvaccinated to wear masks can beef up a company’s legal argument in the event it does get sued, said Sarah Bruno, a retail, privacy, and intellectual property lawyer at Reed Smith LLP in San Francisco.
Businesses with greater potential for Covid-19 exposure—gyms, spas, salons, and the like—may opt for waivers, since those too can provide an important legal buffer in the event of a lawsuit, Bruno said. But many companies are limiting the number of forms they have consumers read, partly because of how burdensome they can be for a shopper who, say, is quickly popping into a store for a single item, she said.
Plus, the more information a company requires and collects, the greater the chance consumer or health data could be exposed or breached. Leaked consumer data could provide ammunition for lawsuits alleging negligence or violations of the California Consumer Privacy Act, said Tom Zych, head of Thompson Hine LLP’s privacy and cybersecurity team.
Limiting the types of information collected and only taking in what’s necessary, a practice known as data minimization, can be a powerful safeguard to liability if that data is mishandled or accessed without authorization, he added.
“We’re advising clients to keep information they collect for only as long as they absolutely need it,” Bruno said. “Each time you collect some data, there’s a risk there.”
While some companies have opted for temperature scanners at store entrances, they’re not storing that data afterward, said David Saunders, a privacy and cybersecurity attorney in the Chicago office of McDermott Will & Emery.
Part of the reason is because laws such as the Illinois Biometric Information Privacy Act, which penalizes companies that mishandle data such as fingerprints, can impose hefty fines, he said.
“It’s almost like a ‘No shirt, no shoes, no temperature, no service’ situation,” Saunders said. “It’s acting more like a metal detector—that collection of data could damage their brand and trust, so they’re scanning temperatures but not retaining it.”