By now I'm sure you've heard that term; Zika is the latest mosquito-borne disease to strike fear into our hearts, following the grand tradition of West Nile, yellow and dengue fevers, and malaria. While its impact on generally healthy adults seems to be minimal--outside of exceptionally rare cases of Zika-related Guillain-Barre Syndrome--it's still undoubtedly unpleasant, and the risk of contracting it multiple times during the height of the epidemic makes it worse. Women who are bitten during pregnancy also run elevated risks of passing the virus to their unborn children. The CDC has circulated reports indicating that Zika-exposed fetuses suffer increased likelihood of developing microcephaly, a cranial defect that affects brain development.
So far in 2016, 33 Dallas County residents have tested positive for the Zika virus. All but one of them contracted the virus in a foreign country experiencing a Zika outbreak, and the final case contracted the bug after having sex with someone who recently had returned from abroad. Dallas County Health and Human Services, like many institutions across the country, believes the likelihood of a domestic Zika outbreak to be high. Due to this, the department has come up with a response plan to combat this possibility. They have permission from the city to enact any measures they feel necessary, which seem mostly to consist of aerial and ground insecticide spraying. When the time comes, let's hope that will do the trick.
Regardless of municipal measures, though, some fairly ludicrous theories have been cropping up from ambitious personal injury attorneys around the Web about precisely what obligations business owners have to prevent the spread of this disease to employees and patrons. We're certainly not the origin of these ideas, and frankly can't see a lot of traction to them, but in the interest of presenting a complete picture for the curious, our injury attorneys looked further into the concept.
Elements of a Zika Claim
Let's say a Dallas resident contracts Zika from a mosquito bite. It could happen; in fact, depending on which sensationalist doom-and-gloom clickbait article you read, it is guaranteed to happen to all of us.
In the event of a bite, the claim wouldn't really be an intentional tort. For that to be the case, the plaintiff's attorney would have to suggest that the owner of the premises where the bite occurred deliberately caught a bunch of mosquitos and ran around the place poking everyone with their proboscises (those are their terrible blood-sucking noses). That's highly unlikely. Instead, the liability allegations would likely focus around negligence, which is essentially the absence of a reasonable standard of care to protect others from harm.
Let's say a Dallas woman was bitten at a restaurant. For a successful injury claim, she would face a difficult gauntlet of elements to prove. Her attorney would need to demonstrate the following:
- The plaintiff's attorney would first need to establish that the restaurant owed her a duty not to put her in harm's way. This is not usually the most daunting element to prove; most businesses are quite aware their staff and patrons should be protected from foreseeable hazards.
- The business must be proven to have breached their responsibility to keep the plaintiff safe during work hours.
Here our path narrows; while it is true that a business is expected to anticipate and address obvious sources of harm like fire hazards or foodborne illnesses, they'd be much harder to pin down for opening a window here or there. Part of this responsibility would hinge on the size and gravity of the Zika outbreak, because part of foreseeability would depend on what alerts the city Health Department had released. Depending on the measures taken to prepare the restaurant after learning of impending Zika risks, one might be able to argue negligence, but the establishment would have had to ignore obvious swarms of mosquitoes or several instances of bites on its premises.
- The plaintiff's attorney would need to prove that the business's negligent action (or inaction) was the proximate (direct) cause of the plaintiff's injuries. If the plaintiff's attorney continued down the road we've so far taken, they would posit that the restaurant's failure to take all available steps to eliminate mosquitoes from the area--knowing that Zika alerts had been issued--would be the action most directly responsible for the woman's infection.
- For an injury claim to be viable, a plaintiff must have some form of demonstrable damages. Should the plaintiff test positive for the Zika virus after a mosquito bite, and--God forbid--should her unborn child then show signs of developing microcephaly, these damages could be proven by medical records.
Those are the elements that would be necessary to pursue a personal injury claim for a Zika infection. They're not impossible, but they would inevitably be fought hard by defense attorneys. Let's look at a few ways that could happen.
Affirmative Defenses for a Zika Claim
The following are a few main contentions that could be raised by defense counsel when liability is being determined for a Zika-positive mosquito bite:
- Causation/Lack of Evidence - An attorney would likely need to go no further than this defense, as it poses a number of questions about the claim's viability: How could the plaintiff prove the specific moment that a mosquito bit her? If bitten by several mosquitoes in the course of a day, how could it be shown that the Zika damage came from a bite sustained while on the restaurant's premises? What if the plaintiff drove home on a nice day with the window down? Or spent time outside putting laundry on a line, or sitting on the back porch? In the end, if this made it to a claim investigator's desk OR somehow avoided summary judgment and ended up in front of a jury, a defense attorney might well be able to blow holes in a claim simply because mosquito bites can happen virtually anywhere, at any time. To establish solid causation, the plaintiff would have to trap or kill and preserve the mosquito that bit her at the restaurant, then have it and herself tested by a laboratory for the presence of Zika. The lab would also have to be able to identify the time at which she was bitten based on the spread of the disease in her system since that time.
- Foreseeability - A defense might reasonably employ this argument. Even if an alert were issued by the Department of Health, a business could say that it wasn't aware the city was under such a watch. Without foreknowledge of the outbreak, the hypothetical restaurant--with regularly-opened windows our outdoor seating--might not know to avoid going about its day as usual. Moreover, few buildings can be expected to hermetically seal all points of ingress that a mosquito might use. All it takes is someone entering or exiting the building, or even just an open air vent. Employers might suspect that mosquitoes could enter the premises, but they can't make a building impregnable.
- Act of God - Mosquitoes are naturally-occurring little monsters. If a business took every reasonable precaution against mosquito infestation--regularly called in exterminators, set bug-zappers or citronella near outdoor areas, kept their grounds free of standing water where mosquitoes reproduce--and someone still gets bitten, counsel could attempt an Act of God defense. While the argument is typically reserved for catastrophic and completely-unforeseeable incidents that deal intense, widespread damage, a disease-riddled insect infestation that manages to hurt people despite attempts to stymie it might qualify as such.
Could a Zika Infection be a Compensable Workplace Injury?
In most U.S. states, employees are covered in the event of injury by Workers' Compensation, a system of paid insurance that pays the injured parties for their treatment and time away from the job. The theory behind the system is simple enough: Get hurt while working, and the company helps make you whole again. The byzantine regulations and bylaws of the system make that process a lot tougher; many would argue that Workers' Comp is heavily in favor the employer, and they'd essentially be correct. Moreover, inclusion in the compensation program prevents an employee from pursuing redress through individual litigation.
The state of Texas is unique in that it is within an employer's rights here to refuse participation in Workers' Comp, which saves them from having to pay into the common insurance fund. Roughly 20% of the state's employers, mostly those in "white collar" areas of employment with minimal physical risk, have "opted out" of the program. This choice does however open those companies up to potential litigation if their paid employees are hurt on the job.
In the event that an employee contracts Zika in most places of employment, they'll likely be compensated to some degree by Workers' Comp until they can get back to work. Some attorneys have theorized that claims might be available to third parties who contract Zika by proxy from the bitten individual; that circles back to the idea of a woman bitten while pregnant, or someone who contracts the disease through sexual contact with an infected party. Legal precedent has awarded Workers' Compensation benefits to unborn children under the principle of derivative injury, which provides guidelines for which third-party damages are compensable by the program.
If the employer is a non-subscriber and there isn't already scheduled compensation on the books for a Zika or disease-related work injury, the fight may not be worth pursuing. Advocates of tort reform would be only too happy to cite litigants' pursuit of damages for Zika infection with exploitative click-inviting headlines like "CAN YOU BELIEVE PLAINTIFF SUED FOR (X) AFTER A MEASLY MOSQUITO BITE?!!" These are incendiary titles meant to drum up support for the idea of instituting compensation limits for personal injury claims.
Tort reform is a lobby suggesting that "frivolous lawsuits" don't have any business "cluttering up the court system," but it's essentially a mouthpiece for the Chamber of Commerce, whose sole purpose is to protect the interests of private businesses. Who stands to lose the most if someone is hurt on their premises? I'll give you a hint: it rhymes with "brivate pusinesses." So I'll have to beg their pardon if I don't buy their attempts to rile people up about the egregious behavior of the justice system.
Workers' Comp or Not, Employers Would Likely Fight a Zika Claim.
While they judiciously apply the law as is their duty, Texan courts are not famous for flexibly interpreting statutes in favor of plaintiffs--that's a move more often seen in more liberal venues like California. Finding room in the law for a successful Zika claim would likely mean overcoming one or more stiff defenses from the employer's hired attorney. The internal claim evaluators in a Workers' Comp program would likely apply some of these same objections, and subscriber or not, employers have the right to due process, the same as any other defendant. They'll naturally fight allegations of negligence, in defense of both their profits and their reputation. They'd likely use some of the same defenses outlined earlier, except we'd substitute "restaurant" with "employer" in those circumstances.
So If I Catch Zika, Can An Attorney Help Me?
Every case is different, and no case is immediately "hopeless." The opinions I'm rendering about the difficulty of such a claim shouldn't be taken as ironclad legal advice. If the pieces fit together and a plaintiff can prove she was bitten and infected in a workplace riddled with mosquitoes during what we will term "Peak Zika," and a business or employer did little to nothing to address the mosquito problem in the building or provide any method of protection, she may be eligible for compensation.
Of course, having a valid Zika-related work injury claim in the foreseeable future looks as likely as having a claim against the Chinese government in the event that one of their satellites comes crashing to earth and hits you. At Grossman Law Offices, we're all about creative interpretations rooted in our legal tradition. This tendency is what allows our civil justice system to remain up to the job of compensating folks who have been injured in ways that were not foreseen by legislation. The flexibility our civil justice system affords us is a far cry from the intentionally difficult political processes in this country.
All of that being said, Zika-work injury lawsuits are definitely not "the next big thing" in personal injury law. While it is understandable that some would look for tools to help those who suffer as a result of this virus, the courts are not the appropriate venue for all of the reasons we've previously listed. I realize that those in the legal community may be reluctant to call people out when they spout nonsense like this--it takes a lot more to build a bridge than to burn it--but without self-correcting mechanisms like peer critique, it becomes possible for tort-reformers to push their agenda.
With all this said, though, an ounce of prevention is worth a pound of cure. While I hope Texan tax dollars fuel an effective defense against this disease gaining a foothold in the Lone Star State, we can do our part by not providing a free meal to these pests. Use bug spray, don't prop your doors open, and stay safe out there.