Louisiana Wrongful Death Claims Against Employers for COVID-19 Exposure

A few days ago, I came across a Reuters news item about an Illinois Wal-mart employee who died from exposure to the COVID-19 virus. Her estate sued Wal-mart for wrongful death damages. They say that the Walmart store near Chicago was not properly cleaned and employees were not given masks, gloves, antibacterial wipes or other protective equipment to protect them, which left them exposed to the virus. That left me to wonder how that claim might be litigated here. After all, personal injury lawyers in Louisiana are a remarkably inventive group, but they are not above borrowing a good idea when they think they see one. We may begin to see suits like this in Louisiana as well. So, as a seasoned claims professional, what do you think? Would a claim like this survive in Louisiana? Please let me have your thoughts in the comments below. In the meantime, here is what I believe would happen.

Louisiana law is clear that when an employee is injured in the course and scope of her employment, her exclusive remedy is in worker’s compensation. To escape the exclusive remedy of the Louisiana Worker’s Compensation Act, the worker must show that the employer either: (1) consciously desired the physical result of its act, or (2) knew that the result was substantially certain to follow from its conduct, whatever its desire may be as to the result.” Taking the employee at her word, the court must decide whether leaving an employee potentially exposed to the virus by not providing protective or disinfecting equipment is an intentional act or if the employer was substantially certain a coronavirus infection would occur from its actions. 

Louisiana courts have said that to rise to the level of intentional tort, an employer must know the injuries would follow its actions with such certainty that a denial of that knowledge is not believable. An injury is not considered intentionally caused just because there exists a high probability that it would occur. In fact, an employer’s actions can rise to the level of “unconscionable” or “callous indifference” and still not translate to an active desire by the employer to cause harm. Louisiana courts have created such a high bar for an employee to show that an employer’s actions were intentional that I cannot see that happening under the facts of the Wal-mart case mentioned above.

That leaves the employee with one remaining path. She must show that the employer was substantially certain that its actions would lead to a coronavirus infection. Unfortunately, “substantially certain” is a vague and imprecise standard. The courts say it means “nearly inevitable,” “virtually sure,” and “incapable of failing.” Lesser degrees of certainty, such as “reasonably foreseeable,” and “should have known,” may raise issues of negligence or gross negligence, but do not constitute an “intentional act” as would be required to recover outside of the workers compensation act. Although this may appear to be a closer call for an employer who places employees in a position to be exposed while taking no steps to prevent or minimize exposure, I am not sure it reaches the level of “incapable of failing.”

The stakes in all of this are fairly high. Death benefits in tort are limitless, but worker’s compensation pays on a schedule up to 65% of the employee’s average weekly wage and a $8,500 funeral benefit. There are many grocery and retail, fast food, delivery, and other employees who may be at risk. We can expect to see many “substantially certain” lawsuits in the coming months, so share your own insights or concerns in the comments below. 

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 Lance E. Harwell is a Member of Staines, Eppling & Kenney, practicing, publishing, and presenting seminars in the fields of general liability, insurance coverage, bad faith insurance claims handling, auto liability, longshore, Louisiana worker’s compensation, fire, and property defense. He is an AV-rated attorney, a Melvin Jones Fellow, and a recipient of the APAS Frank Hara Memorial Award for community service. Lance was selected and serves on the Louisiana Association of Business & Industry’s (LABI) Legal Advisory Council.  When he is not practicing law, Lance often volunteers with the Louisiana Bar Association’ Law Day and Constitution Day events, Project H.E.L.P. (Homeless Experience Legal Protection), the University Park Lions Club, and the Asian-Pacific American Society. Otherwise, he can be found cheering for his Louisiana Ragin’ Cajuns. He is married to a woman he does not deserve and is the father of one really great son.

The opinions and comments expressed above are those of Lance E. Harwell, who is not responsible for the inaccuracy of content or any loss or damages incurred by any party as a result of reliance on information contained in this article. The article may not be published or reproduced without the written consent of the author. Prior articles may not be updated for accuracy as pertinent information changes over time. The content of this and other articles composed by Lance E. Harwell provide general information not specific to any particular case or set of facts and should not be construed as legal advice, nor do they establish an attorney-client relationship.