The Ship Has Sailed on Plaintiffs’ Efforts to Recover for Mere Fear of Contracting COVID-19
On February 21, 2020, the cruise ship Grand Princess embarked from San Francisco, headed to Hawaii. Among the ship’s 3,533 passengers and crew were 62 people who had been exposed to COVID-19 on the ship’s immediate prior trip to Mexico. The Hawaii voyage was curtailed and the ship docked off the cost of California for two weeks, during which passengers were confined to their rooms and two dozen people tested positive. A number of personal injury lawsuits followed, the majority of which have been coordinated before Hon. R. Gary Klausner in the U.S. District Court for the Central District of California.
On July 14, Judge Klausner granted Princess Cruise Lines, Ltd.’s 12(b)(6) motion to dismiss the “Fear Cases” under the lead matter Weissberger, et al. v. Princess Cruise Lines, Ltd., Case No. 2:20-cv-02267-RGK-SK. The “Fear Cases” are 14 suits brought by former Grand Princess passengers who did not test positive for COVID-19 or manifest symptoms of that disease, but seek to recover compensation for emotional distress and punitive damages based on their fear of contracting the virus while on the ship. The court construed the allegations as claims for negligent infliction of emotional distress (“NIED”).
Plaintiffs Are Categorically Barred from Satisfying the Supreme Court’s “Zone of Danger” Test
Plaintiffs’ claims are governed by the century-old “zone of danger” test, which permits recovery when (1) a plaintiff suffers a “physical impact” in addition to emotional distress, or (2) a plaintiff’s location places him or her in “immediate risk of physical harm,” sometimes known as “near miss” cases. Consol. Rail Corp. v. Gottshall, 512 U.S. 532 (1994). Plaintiffs here did not claim any physical harm or symptoms, but alleged that exposure to COVID-19 aboard the ship put them in the “zone of danger,” permitting recovery under the second prong.
Defendant argued that, in Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997), the Supreme Court categorically barred recovery for emotional distress based on fear of contracting a disease if a plaintiff cannot show a positive diagnosis or symptoms of the condition – regardless of the claimant’s physical proximity to the contagion. In Metro-North, the Court held that mere exposure to asbestos and the subsequent fear of contracting associated diseases does not satisfy the Gottshall test and that a plaintiff must show, at a minimum, physical impact in the form of symptom manifestation.
The court agreed with Princess Cruise Lines, reasoning that plaintiffs’ analysis would lead to “bizarre results” where similarly situated plaintiffs could bypass the required physical impact element by pleading mere exposure to an illness, an “exception [which] would swallow the rule.”
Risk of Frivolous Actions and Unlimited COVID-19 Liability
Judge Klausner expressly rejected Plaintiffs’ urging to create a cruise-ship exception to the Metro-North rule, envisioning a “flood of trivial” suits based on exposure to the prevalent, novel coronavirus in confined settings. The court observed that this would open the door to unlimited and unpredictable liability, and contribute to the special difficulty for judges and juries in separating valid, important claims from frivolous ones:
The Court disagrees that fears of unlimited liability are overblown and declines to carve out the cruise-ship industry from Metro-North’s mandate. The risk of exposing individuals to COVID-19 is not unique to cruise ships — quite the contrary, in fact, as restaurants, bars, churches, factories, nursing homes, prisons, and other establishments across the country continue to report COVID-19 cases. It is true that cruise-ship goers are a captive audience in a way that is not the case in other contexts. But this alone does not warrant creating a ‘cruise-ship’ exception to the zone of danger test. … Can a prisoner recover for NIED against the prison based solely on their proximity to individuals with COVID-19 and their fear of contracting the virus? Based on Gottshall and Metro-North, the answer appears to be ‘no’ for all of the reasons discussed above.
While these cases are governed by maritime law, that does not diminish the relevance of this holding to similar cases arising outside the context of cruise ships. The court’s broad reasoning establishes important persuasive analysis as COVID-19 continues to spread, with many undiagnosed and/or asymptomatic carriers.
Although the court dismissed the negligence claims of cruise-ship passengers unable to allege physical injury, numerous claims related to the Grand Princess voyage remain. Oral argument is scheduled for the end of July on Defendant’s motions to dismiss a group of “Mere Diagnosis” cases, wherein passengers allege they tested positive for COVID-19 but did not assert physical injury or manifestation of symptoms. Another hearing is scheduled for the end of August on Defendant’s motions to dismiss Grand Princess-related cases brought by the families of passengers who allegedly died from COVID-19-related injuries.