By Marcus Fernandez
The spread of the new coronavirus continues in Florida, as it does throughout the United States, with more than 1.5 million cases of COVID-19 in the Sunshine State. A positive test may have you wondering, “Can I file a personal injury claim for COVID-19?” The short answer is a qualified “yes,” but it depends upon the circumstances.
A better understanding of the answer requires a closer look at personal injury claims. Let’s take a look at the elements required to establish the existence of a claim, how to prove them, and potential parties whom a claim may be filed against.
Is COVID-19 a Personal Injury Claim?
You may have heard people say that you can sue anyone for almost anything. But what that statement leaves out is this: to be successful and win you need evidence to prove your claim. Proving that someone infected you with the coronavirus requires evidence. You must be able to prove that another person was negligent by engaging in careless or reckless behavior. However, that can be tricky with a COVID-19 case.
There are four elements to a personal injury claim based on negligence:
- Existence of a duty of care. The at-fault party, referred to as the “defendant” in the lawsuit, owed you a duty to act reasonably. For instance, a driver has a duty to obey the traffic laws and maintain control over the vehicle so as not to harm others. In the context of COVID-19, the duty of care of an infected person is to take reasonable precautions. Such as, self-isolating and wearing a mask to avoid spreading the disease to other people.
- Breach of the duty of care. The defendant acted in a way that violated the duty of care owed to you. For example, someone who tests positive for COVID-19 and continues to go out and mingle with other people after finding out the test results would be a breach of the duty of care.
- Causation. The breach of duty caused harm. Evidence supporting a COVID-19 personal injury claim would have to prove the breach of the duty of care caused you to be harmed or, more specifically, infected with the virus.
- Damages. The harm caused damages. The cost of physicians, medication and hospitalization may be significant depending upon the seriousness of your illness.
Causation may be difficult to prove in a COVID-19 claim based on negligence because the virus is so widespread. The evidence would have to narrow the source of infection to a particular location and a specific person. So, as you can imagine, proving that one person infected you with the virus is difficult.
Be Aware of Contributory Fault
Something else that may come into play when you file a personal injury claim for COVID-19 is contributory fault on your part. Florida law allows a judge or a jury in personal injury cases to take into consideration evidence offered by the defendant proving fault on the part of the injured person. For example, if the defendant proves you failed to wear a mask, social distance, and take other reasonable precautions to protect yourself from the virus, the damages awarded may be reduced by your degree of fault in exposing yourself to the risk of infection.
Options for Someone Considering a Claim for COVID-19
Individuals who transmit the disease may not be the only option available to you for a compensation claim. For example, a business and its management may be at fault. Tampa is one of many communities that imposed rules on businesses to reduce the risk of spreading the virus.
An executive order in Tampa requires businesses open to the public to enforce a face-mask mandate, post signs within their establishments about masks and require employees to wear masks. So, if the failure of a business to enforce a mask mandate causes you infection, you may have a claim against the owners and management.
The company operating a cruise ship was sued by passengers who claimed they were exposed to the virus. The lawsuit alleged that management was aware that someone on the ship displayed symptoms consistent with the virus. Yet, management did not take steps to minimize the risk of exposure by others onboard, according to the lawsuit.
Gather Evidence Supporting Your Claim
As with any personal injury claim, one based upon COVID-19 requires evidence to support it. You can help your case by saving all records related to medical treatment, prescription medications, and time lost from work.
If your claim is against a business establishment, keep copies of sales receipts to prove you were at the location. Photographs of the conditions within a business, such as people milling about without masks, may be helpful to prove your claim.
Consult with a Personal Injury Attorney
If you or a loved is exposed to coronavirus, you want answers about your rights. Your best source for information about how to file a personal injury claim for COVID-19 is a consultation with a knowledgeable Tampa personal injury attorney, like one of our experienced lawyers at Kinney, Fernandez and Boire. Call us or fill out this form to get a free case evaluation.