An Injustice In Maryland

I don’t normally address negligence cases or cases outside of California or Oregon. As an employment lawyer, I, fortunately, don’t often have to deal with death issues. But this one leaps out for a comment.

Remember what it was like when the COVID transmission orders first came down last March? If you were like most people, you were instructed to stay home as much as possible. It felt like a quarantine. Many people did quarantine. But some people had to go to work despite the pandemic.

Carol Madden was such a person. She’s a flight attendant for Southwest Airlines. The FAA requires periodic training for flight attendants and Southwest provides and makes attendance at its training mandatory. So when her training was scheduled in July of 2020, she went. It’s not clear to me why the training had to be in person.

Carol Madden got COVID at the training. And she took it home, where her husband William got it from her. William died of COVID not long afterwards.

We need not address the truthfulness of her claim here. I have long thought that “I got COVID at work” cases will present significant problems in isolating work as the vector that caused the disease to be transmitted, and then proving that something the employer did or didn’t do would likely have made a difference in the outcome. Maybe Carol could have proved it, maybe not. I was Southwest’s lawyer I’d have pushed hard on that facet of the case if it came to it. But it never did come to that. The Court accepted as true, at face value, her claim that she got COVID at the training.

Acting as the administrator of William’s estate, Carol brought a claim for negligence (the same sort of claim an auto-versus-auto plaintiff might bring against a defendant, alleging harm resulting from carelessness) against Southwest on behalf of her late husband’s estate, alleging, in essence, that Southwest failed to take proper care under the circumstances. That set in motion a chain of events leading to William’s death.

As first-year law students know, the law of negligence can get pretty murky. One of the clearer things is that a plaintiff needs to prove, among other things, that the defendant owed her a duty of due care. Getting from the generalized statement that everyone should generally be careful and prudent, to a particularized set of circumstances where a reasonable person would do (or not do) a particular thing, can feel like the intellectual equivalent of swimming blind through a swamp.

At an intuitive level, it doesn’t take a lawyer to do this. Consider a very simple hypothetical set of facts. Imagine that Amy is driving her car northbound, and approaches a four-way intersection. She sees Bob driving his car eastbound, entering the intersection. Isn’t it intuitively obvious that Amy owes Bob a duty to not accelerate into that intersection? She ought to slow down, to try not to hit Bob. When Amy accelerates into the intersection rather than slows down, and hits Bob’s car that is also in the intersection, she likely breaches the duty of due care she owes Bob. It’s not difficult to conclude that Amy owes Bob a duty of care to not hit him with her car.

Philosophically, where does that duty – your duty to not hit things with your car – come from? In Maryland, the courts use a seven-factor test to balance when that kind of duty applies: (1) the foreseeability of causing harm to others, (2) the degree of certainty that harm will result from carelessness, (3) the closeness of the connection between the defendant’s careless conduct and the harm to the plaintiff, (4) the moral blame attached to the defendant’s careless conduct, (5) creating legal incentives that will prevent future harm, (6) the burden on the defendant and the community of imposing a legally actionable duty, and (7) the availability, cost and prevalence of insurance for this sort of risk.

(See, I told you it gets murky.)

That’s the standard in Maryland, as described by the Madden Court. California’s and Oregon’s standards aren’t phrased quite the way Maryland does, but they get to about the same intellectual place. They address the same sorts of factors. Chances are good if you’re in a different state than any of these, the relevant factors are still more or less like Maryland’s.

In Madden, the Court analyzed each of these seven factors to determine “Did Southwest owe a duty to protect against COVID at its mandatory training?” and found that most of the factors weighed in favor of imposing a duty of care on Southwest. But when it got to factor six — the burden on the defendant and the community of imposing a legally actionable duty — things took a turn.

The burden on Southwest, the Court writes, was light. It need only have engaged in practices like making the training attendees wear masks, social distance from one another, engage in hygiene like thorough hand-washing, and use contact tracing. Stuff we’re all familiar with now; and in fact, we were all familiar with it by July of 2020. These things wouldn’t have been hard for Southwest to do.

But after that, the Court looked at the cost to society of imposing a duty. The Court explicitly held that to impose a duty here would “open the floodgates” of litigation. In other words, the Court said, if we let Mr. Madden’s estate sue Southwest, then everyone in the state who got COVID (or their estates) will file lawsuits against their spouses’ employers for causing COVID. That, in the Court’s reasoning, would create a generalized cost to all of society that is prohibitively high and justifies a finding of no duty at all. Result: case dismissed.

You can read the whole decision here.

Because of the way the case was evaluated by the Court at an early phase of the case, we have to assume that it’s really the truth that Ms. Madden had no other contact with the outside world after quarantine other than her training. We have to assume that Southwest really was negligent in the way it set up its safety protocols for the training. We have to assume that Mr. Madden had no other contact with the outside world other than through his wife after she came home from the training. If those things are true, it’s pretty likely that Southwest’s negligence led to Mr. Madden’s death. (Obviously, we’re not assuming that this was something Southwest wanted, but that’s a different kind of case.)

If all of that is true, then why oughtn’t Southwest be held financially responsible for it? It is Southwest’s duty to provide a safe workplace, and if all of these assumptions are true, it didn’t do that and a man died because of it. Just because it’s possible that a lot of other people might bring similar kinds of claims is no reason at all to deny the Madden family justice.

That’s what courts are for!

Three points to consider. First, I’m not saying Southwest ought to automatically give the Maddens money. There would be lots of ways Southwest could have defended itself. Was it really true that neither of the Maddens had any other contact with the outside world? The training took place in July, four months after quarantine orders were put in place. How many times had one or the other of them gone to the grocery store, or out for a walk to take some exercise and get fresh air? What kinds of safety precautions were really in place at that training? If Southwest did the things that were reasonable and appropriate at the time (this was July 2020, remember) then the Court ought to find that Southwest was not negligent as a matter of fact.

So there’s no particular reason to think that Southwest would have lost this case on the merits and had to pay a dime to the Maddens — indeed, it seems to me that proving the merits of this case would have been pretty challenging. The problem is, the Court didn’t even give the Maddens a shot at it. My only argument here is that this case should have progressed to the factual merits.

Second, just because it’s possible that many people could bring lawsuits doesn’t mean that this is what will happen. Once upon a time, an objection to laws prohibiting race discrimination was “If we let people file lawsuits alleging race discrimination, everyone in the world is going to sue their employers!” and that hasn’t turned out to be true in reality. I speak to people of all sorts of racial, ethnic, and national origin backgrounds with all sorts of issues. It’s actually pretty rare for any of them to say that race was a significant factor in how they were treated. Not never, but rare.

Remember, this factor of the test is intended to address the costs to society as a whole of imposing a duty of care in a given kind of situation, such as Southwest’s mandatory training during COVID times. So thinking about the old argument that allowing lawsuits for race discrimination would open the floodgates of litigation, yes, there are many lawsuits filed every year alleging race discrimination, but as we’ve seen through practical experience, not so many that our economy has been crippled by them. If we were to make the (shocking and ghastly) political decision to take away peoples’ rights to claim and sue for race discrimination, the effect on our economy as a whole would surely be negligible.

As a society, we find racial discrimination to be pretty obnoxious, such that if it were really true that a lot of employers were doing it, we probably wouldn’t mind a lot of lawsuits out there. That’s what courts are for. You can’t tell a corporation to do the right thing because it’s the right thing; you have to create economic incentives that guide the corporation to behave in a way consistent with doing right. So you create a financial disincentive to bad conduct like race discrimination. We don’t care very much that there’s a potential for a lot of expensive litigation. We know that because our political processes have resulted in the creation of anti-discrimination laws. This demonstrates that as a society, we’ve evaluated that preventing the bad conduct of race discrimination is worth the potentially high social cost of which might be a lot of litigation because we’re morally repelled by the badness of that act.

So third, a big part of what justice is, at least in our society, is making people pay for the harms they cause others. If you don’t think that ought to apply to COVID, imagine for a minute that Southwest knew that because of various circumstances of the time and place of the training, there was a significantly enhanced risk that the people at that training might get leprosy. But Southwest did absolutely nothing about it. Aren’t you morally repelled by that set of facts? (Note well: leprosy, also known as “Hansen’s Disease,” is far from the risk that was feared to be back in olden days; if diagnosed early and treated with a course of antibiotics, this disease can be completely cured with few, if any, symptoms, and so as a society we probably need to re-evaluate the amount of stigma we attach to that disease.)

If that had happened, it’s an easy call to say Southwest needs to be held accountable for it.

This isn’t controversial or subject to reasonable dispute. Nearly everyone would agree that if a business sends a careless driver out onto the roads who causes an accident, the business has to pay to fix the damage. If the business belches toxins into the air or the groundwater, the business has to pay to clean it up. So it follows that if the business exposes people to harmful pathogens like the COVID virus, it should have to pay for the harm that follows from that.

It’s not unreasonable to demand that an employer do reasonable things to make a workplace be safe. That’s especially true when what would have been reasonable would have been a) making everyone wear masks, b) keeping social distancing, and c) requiring people to wash their hands, which was the guidance at the time. Or, finding a way to do the training by videoconference. These things wouldn’t have cost Southwest very much money, time, or inconvenience to do. Plenty of other companies were able to do them. (And, let’s not forget, maybe Southwest did do those things.)

But it is unreasonable to close the courthouse doors to people who have a plausible claim to present, people like the Maddens. That stays true even if there are a lot of other people who might have been harmed the similar ways and who also might want access to justice for it. Courts are inherently in the business of delivering justice. We all deserve justice — at least, we all deserve to be able to ask for it, and to have that claim be evaluated fairly and on its merits. I hope that one day Carol Madden gets that opportunity.