Thanksgiving Hosts Can Be Sued As COVID Superspreaders; Law Permits Some Liability for Adults, But Far More For Children
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Thanksgiving Hosts May Be Legally Liable For Damages
WASHINGTON, D.C. (November 25, 2020) - While many jurisdictions are seeking to have hosts severely limit the size of traditional large-family gatherings for Thanksgiving, one argument which just might help persuade them is that they may be legally liable for damages, including for wrongful death, if a guest comes down with COVID as a result of attending, especially for infected guests under the age of 18, says public interest law professor John Banzhaf.
With so many governors and other public figures, as well as a large parade of experts issuing stern warnings on TV and in the media, about the dangers of spreading COVID at large family gatherings, especially for Thanksgiving, it should be easy to persuade a jury that hosting such a gathering - particularly since 6-foot social distancing can hardly be practiced around a dinner table, and guests can't wear masks while eating and drinking - that arranging, encouraging, and hosting such a dangerous gathering constituted legal "negligence"; i.e., the failure to act like a reasonable prudent person and take reasonable precautions.
In any such negligence action - for damages if the guest contracts the disease but lives (perhaps with lasting disabilities) or dies (in a wrongful death suit) - the key issue would be whether the plaintiff either was himself negligent for attending, and/or knowingly assumed the risk of contracting COVID.
Bringing Children To Family Gatherings
But it can hardly be argued that a child of 4 or 12 or even 16 was negligent or assumed the risk when acting under the direction of a presumably-more-knowledgeable adult. Indeed, most children might not even have a choice if their parents brought them to the family gathering, even if the child was reluctant to attend.
While some might assume therefore, that it is the parent of the child, and not the host of the Thanksgiving dinner, who was negligent and/or assumed the risk, and therefore should be solely liable, that's not the law in most jurisdiction, notes Banzhaf, who has been involved in litigation in which harm to children was caused by third parties, even with the parents' permission.
Indeed, Banzhaf has been so successful in many novel law suits - e.g., against tobacco companies, fast food corporations, and even Spiro T. Agnew - that he has been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," the "Dean of Public Interest Lawyers," "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," the lawyer "Who's Leading the Battle Against Big Fat," "The Man Big Tobacco and Now Fast Food Love to Hate," and "a Major Crusader Against Big Tobacco and Now Among Those Targeting the Food Industry."
The legal defenses of contributory negligence and assumption of risk are personal, and a parent's carelessness or assumption does not automatically let a third party whose negligence harms are child off the legal hook.
So, while the parents of children who became infected from COVID at a large family dinner might also be subject to legal liability for negligence - since many different parties can be held liable for a single action of negligence under the familiar "but for" rule - legal actions for a child's death or disability from COVID are much more likely to be brought against a third party than against a parent or guardian.
The Legal Doctrines Of Contributory Negligence
Moreover, says Banzhaf, states have largely moved away from the old rule that a plaintiff who was also negligent in causing his own injury is barred from any recovery against another person or entity (such as a manufacturer of a dangerous product) because of the legal doctrines of contributory negligence and/or assumption of risk.
Instead, the more common rule is to apply the doctrine of comparative negligence. Thus, if the host's negligence is seen by a jury as being responsible for 60% of the death or injury, with the adult plaintiff responsible for the remaining 40%, the plaintiff (or his estate) should be entitled to recover only 60% of the damages, rather than being barred from any recovery.
So, in addition to the medical dangers of putting a large number of family members at risk by hosting a traditional large family Thanksgiving dinner, hosts may also want to consider their own potential legal liability for civil damages, suggests Banzhaf, who says he would not be surprised if such suits began to be brought before Christmas by families whose child died, suffered disabilities, or even simply contracted this deadly and disability disease at Thanksgiving.