The COVID-19 crisis has had an impact on every court across the nation, both at the state and federal levels, postponing and delaying countless civil litigation hearings and trials. There is still a great deal of uncertainty as to when social distancing guidelines will be relaxed and when states will begin to resume normal business activities. The continued postponement of hearings and trials will result in a tremendous backlog of cases vying for the attention of the courts, as litigators across the nation do their best to zealously advocate for their clients.

As this country battles the continued wave of COVID-19 cases and prepares for the possibility of a second wave of COVID-19 infections in the United States at some point in the not so distant future, litigation has already commenced as a result of the COVID-19 pandemic.

Princess Cruise Lines

At least a dozen lawsuits have been filed against Princess Cruise Lines as a result of passengers affected by the COVID-19 outbreak, and that number continues to climb.

On March 7, 2020, Plaintiffs Ronald Weissberger and Eva Weissberger filed suit in the United States District Court for the Central District of California, alleging negligence and gross negligence by the Defendant, Princess Cruise Lines Ltd., for its “lackadaisical approach” to the COVID-19 pandemic. The Complaint detailed that one of Princess Cruise Lines’ ships, the Grand Princess, departed out of San Francisco on February 21, 2020, and returned to Oakland on March 4, 2020, where it was forced to dock until all passengers could be moved to military bases for quarantine.

On March 13, 2020, Plaintiffs Brian Sheedy and Melanie Sheedy filed an identical complaint against Princess Cruise Lines Ltd., also in the United States District Court for the Central District of California.

Under California law, the elements that must be met to show negligence are “(1) defendant’s obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir.2009) (quoting McGarry v. Sax, 158 Cal.App.4th 983, 994, 70 Cal.Rptr.3d 519 (2008); Lawman v. City & Cty. of San Francisco, 159 F. Supp. 3d 1130, 1152 (N.D. Cal. 2016).

According to the Weissberger and Sheedy Complaints, none of these Plaintiffs have tested positive for COVID-19. The only alleged damages include exposure to the risk of immediate physical injury, emotional distress and trauma from the fear of developing COVID-19. A cause of action for negligence requires damages in the form of “detrimental physical changes to the body” and this physical injury “for the purposes of parasitic emotional distress damages required actual harm.” Macy’s California, Inc. v. Superior Court, 41 Cal. App. 4th 744 (1995). A plaintiff must prove detrimental change to his or her body to be able to recover for parasitic emotional distress damages. Id.

Without proof of a physical injury, in order to recover for emotional distress a Plaintiff must show that he/she is “more likely than not” to develop the injury or illness. Courts have held that the “more likely than not” threshold to emotional distress was appropriate for negligent exposure to human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS) in absence of physical injury. Macy’s California, Inc. v. Superior Court, 41 Cal. App. 4th 744, 48 Cal. Rptr. 2d 496 (1995). Additionally, this standard has been deemed appropriate for cases where a plaintiff feared developing cancer due to toxic ingestion or exposure. Id.

Additionally, California law does not recognize a distinct cause of action for gross negligence independent of a statutory basis. Martinez v. United States, 812 F. Supp. 2d 1052 (C.D. Cal. 2010). Neither the Weissberger nor Sheedy Complaints cited to any statutory basis supporting their claim that the cruise line was grossly negligent.

The Center for Disease Control (CDC) issued a statement on February 18, 2020, before the Grand Princess set sail, detailing that the Diamond Princess, cruise ship in Yokohama, Japan, had recently suffered an outbreak of COVID-19. Before boarding the Grand Princess, all passengers were asked to sign a piece of paper confirming they were not sick. Notably, the CDC did not issue its first “No Sail Order” until March 14, 2020. By choosing to board a cruise ship at the beginning of what is now a pandemic, with warning signs that COVID-19 should be taken seriously, the Plaintiffs may also bear some liability for their alleged emotional trauma and distress.

Under California law, contributory negligence “is the conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.” Gyerman v. U.S. Lines Co., 7 Cal.3d 488, 500, 102 Cal.Rptr. 795, 498 P.2d 1043 (1972) (quoting RESTATEMENT (SECOND) OF TORTS § 463); United States v. Sierra Pac. Indus., 879 F. Supp. 2d 1128, 1133–34 (E.D. Cal. 2012), adhered to on reconsideration, No. CIV S-09-2445 KJM, 2012 WL 2571274 (E.D. Cal. July 2, 2012).

The lawsuits against Carnival for the infamous Triumph “poop cruise”, where an engine fire left the ship with no air conditioning, over-flowing toilets, and other toxic conditions, resulted in unsuccessful lawsuits as the Plaintiffs were unable to show any serious physical injury or physical illness. Though damages were awarded to some of the Plaintiffs, after deducting attorney’s fees, costs, and expenses, the resulting reward was minimal as to some Plaintiffs and nonexistent as to others.

The lawsuits filed against Princess Cruise Lines are among the first in the country. The resulting fallout of COVID-19 infections has sparked a universal fear of a fatal infection in every person. While a jury may be able to empathize with the fear and emotional distress created by the COVID-19 pandemic, prior case law and legal precedent may not support such claims absent a physical injury or where a plaintiff’s conduct contributed to his or her alleged injuries. The addition of COVID-19 cases to the current backlog of matters before Courts will unfortunately prolong insight into how the Courts will handle these novel claims.