Hawkeye wrote: ↑Sat Jul 23, 2022 3:56 am
Who cares whether Germans can sue each other? And why do you keep pretending that death is the only bad effect of the virus when the evidence to the contrary is crystal clear? Of course the virus has a high survival rate if you don’t count the people that it kills.
You're a good one to ask Res Ipsa. Could I successfully sue you for battery if I can contact trace and prove that you caused me to get the flu or a cold when you weren't wearing a mask?
I’m not aware of any precedent for that. If there is, it would be in the transmission of HIV or some STD like Herpes. I’ll take a look.
ETA: Here a law review article on civil liability for the sexual transmission of herpes.
https://scholarship.law.cornell.edu/cgi ... ability%22
As the article describes, there is quite a bit of precedent that finds civil liability in damages based on transmission of a disease, going as far back as smallpox and tuberculosis. The theory can be based on intentional conduct (battery, attempted murder), recklessness or negligence. Negligence is unintended harm caused by careless conduct (more formally, failure to do what a reasonable person would do under the same set of facts.)
So take HIV, which is the easiest case. If I test positive for HIV and transmit HIV to a sexual partner, I can be liable in damages unless I disclosed my HIV status and the partner consented to the sexual activity. (In many states, failure to disclose is a crime even if the disease wasn’t transmitted — exposure to the disease is a crime.
Now take COVID, suppose I test positive for COVID but go unmasked to a restaurant, say nothing about my COVID status, and infect the other three people at my table, one of whom dies and another who sustains permanent heart damage. I would very likely to be liable for damages for the wrongful death of the one individual and the heart damage done to the other. It would be up to the jury, but the question would be whether the ordinary, reasonable person would have gone to a restaurant knowing he had COVID, failed to wear a mask while not wearing/drinking, and failed to warn others at his table that he had just tested positive for COVID. And, given they types of things juries award damages for, I think there is a very high chance that a jury would award damages.
Although we don’t consciously think about in our day to day lives, we absolutely have legal duties that require us to act in particular ways to avoid harming others. And if we violate those duties and cause harm to someone else, the coercive power of the state will take away your stuff and give it to the person you harmed.
Because the general rule is do what an ordinary, reasonable person would do, as determined after the fact by a jury, the legal duty ends up changing over time. I had a long conversation with my friend in Germany about the concept of sick leave. He asked me what “sick days” were for employees. His employer didn’t have a sick leave policy with X number of days a year. Employees are expected to stay home if they are sick, in part to avoid infecting other employees. He asked me “Why would any employers want people to come to work sick?”
In the U.S., we give people incentive to come to work with cold or flu, as employees save their sick days for more serious illness or have exhausted their paid sick days for the year. So, in the U.S. an ordinary, reasonable person would come to work with minor illness. But, if my friend’s employer is typical of employers in Germany, you might be liable for damages if you came to work sick and infected a co-worker.
So, COVID presents all kinds of opportunities for civil liability. As a health care Provider, your standard of care is higher - what a reasonable health care provider in your situation would do. Suggesting that a masked patient remove their mask because it is more convenient to you sounds like a dumb risk from a legal standpoint, but it’s your livelihood and stuff, not mine.