By now I'm sure you've heard the word "Zika." It's 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 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 intimate contact with someone who recently returned from abroad. Dallas County Health and Human Services currently believes the likelihood of a domestic Zika outbreak to be high. Due to this, the department has come up with a response plan, which seems 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 to the curious, our injury attorneys looked 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's 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 little needle-noses. That's unlikely to the point of absurd. 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 hardest element to prove; most businesses understand 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 cause of the plaintiff's injuries. If the attorney continued down the road we've so far taken, they'd have to compellingly show that the restaurant's failure to do everything possible to eliminate mosquitoes from the area was most directly responsible for the victim's infection.
- For an injury claim to be viable, a plaintiff must have some form of demonstrable damages. If the plaintiff tested positive for the Zika virus after a mosquito bite, and (God forbid) her unborn child then showed signs of microcephaly, these damages could be proven by medical records.
Those are the elements that would be necessary to pursue a negligence 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 just spent more time outdoors somewhere?
If such a claim made it to an investigator's desk OR somehow avoided summary judgment and ended up in front of a jury, a defense attorney might well be able to destroy it 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 as well. 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 strict watch. Without foreknowledge of the outbreak, the hypothetical restaurant with opened windows or outdoor seating might not know to avoid its usual routine. Moreover, few buildings can be expected to hermetically seal all entry points 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 fully airtight.
- 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. That argument is typically reserved for catastrophic and completely-unforeseeable incidents that deal intense, widespread damage, but an insect infestation that manages to hurt people despite attempts to prevent it might squeak by. It would probably need to be on a Biblical scale before the defense wouldn't be laughed out of the courtroom, though.
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 employees 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 complex regulations and bylaws of the system make that process a lot tougher; many would argue that workers' comp heavily favors employers over workers, and they'd essentially be correct. Moreover, inclusion in the compensation program prevents an employee from filing a lawsuit against their employer.
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. That choice opens 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 clickbait headlines like "CAN YOU BELIEVE PLAINTIFF SUED FOR (X) AFTER A MEASLY MOSQUITO BITE?!!" These are usually on hit pieces meant to drum up support for the idea of compensation limits on personal injury claims.
Tort reform supposedly argues that "frivolous lawsuits" don't have any business "cluttering up the court system," but it's basically just 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."
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. 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 swarming 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 the 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 the legal community may be reluctant to call fellow attorneys out for such nonsense—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 far more destructive pests like tort-reformers to swarm.
With all this said, though, an ounce of prevention is worth a pound of cure. I hope Texan tax dollars fuel an effective defense against this disease gaining a foothold in the Lone Star State, but in the meantime 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.