Should Employers Expect Lawsuits in Circuit Court for COVID-19-Related Deaths?
The family of a Walmart, Inc. employee in Illinois, who died due to complications from COVID-19, has filed a lawsuit in Cook County Circuit Court accusing the retail giant of failing to adequately screen and protect workers. The suit suggests (among other allegations) that a Chicago-area Walmart store was not properly cleaned and that employees were not given masks, gloves, antibacterial wipes or other protective equipment. The employee died on March 25, and another employee at the same store died four days later from complications due to COVID-19, according to the complaint.
This lawsuit is a reminder that while the Illinois Workers’ Compensation Act does have an exclusivity provision, this cannot prevent the filing of cases against employers in circuit court which attempt to circumvent this provision.
Section 5(a) of the Illinois Workers’ Compensation Act provides:
“No common law or statutory right to recover damages from the employer … for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act.” 820 ILCS 305/5(a) (West 1992)
Section 11 of the Illinois Workers’ Compensation Act provides:
“The compensation herein provided … shall be the measure of the responsibility of any employer … for accidental injuries sustained by any employee arising out of and in the course of the employment … .” 820 ILCS 305/11 (West 1992)
These provisions are part of the quid pro quo whereby the employer gives up common-law defenses in exchange for limited liability (Meerbrey v. Marshall Field Co. (1990), 139 Ill.2d 455, 462.). However, the remedies provided by the Act are exclusive, but not without exceptions. These exceptions are: (1) the injury was not accidental; (2) the injury did not arise from the employment; (3) the injury was not received during the course of employment; or (4) the injury was not compensable under the Act (Meerbrey, 139 Ill. 2d at 463; Richardson v. County of Cook (1993), 250 Ill. App.3d 544, 547.). The exclusivity provisions will not bar a common-law cause of action against an employer for injuries which the employer or its alter ego intentionally inflict upon an employee or which the employer commands or expressly authorizes. (Meerbrey, 139 Ill. 2d at 464.)
The Illinois Supreme Court has held that “the term ‘accident’ is not ‘a technical legal term but encompasses anything that happens without design or an event which is unforeseen by the person to whom it happens.'” Pathfinder Co. v. Indus. Comm’n, 343 N.E.2d 913, 917 (Ill. 1976) (quoting Int’l Harvester Co. v. Indus. Comm’n, 305 N.E.2d 529, 532 (Ill. 1973)). In refining this “accident” inquiry in the context of intentional torts, the Illinois Supreme Court has held that an employee “must allege that the [employer] acted deliberately with specific intent to injure the [employee].” Copass v. Illinois Power Co., 569 N.E.2d 1211, 1216 (Ill. App. 4th Dist. 1991).
It should be noted that Illinois courts have interpreted the protections of the exclusivity provision very broadly. The Courts have been loath to open the floodgates to circuit court litigation. Most cases filed in circuit court that attempt to circumvent the exclusivity provision do not survive a motion to dismiss. Examples of allegations in complaints that have survived a motion to dismiss include theories of intentional murder, fraud, and battery. Essentially, Plaintiffs have argued that an alleged injury is not an “accident” under the Act. Under the circumstances of a death due to Covid-19, the suggestion would be that the exposure and failure to properly warn, clean the premises, and provide a safe workplace per CDC guidelines would all be part of an intention to murder, defraud, or batter the Plaintiff. Lawsuits which allege mere negligence or willful and wanton conduct will almost certainly be dismissed due to exclusivity.
Instructive in the case of a death due to Covid-19 are asbestos exposure cases which have survived or examined a motion to dismiss such as Handley v. Unarco Industries, Inc., 124 Ill.App.3d 56 (Ill. App. Ct. 1984); Wolford v. Owens-Corning Fiberglas Corp. (1988), 176 Ill.App.3d 312, 530 N.E.2d 721; and Hartline v. Celotex Corp., 272 Ill.App.3d 952 (Ill. App. Ct. 1995). These cases are particularly instructive as to how Illinois Courts have interpreted assertions that employers intentionally exposed a plaintiff to a dangerous condition (asbestos) in the context of the exclusivity provision.
In those cases, plaintiff suggested (among other things) that the defendant intended to kill plaintiff and his coworkers in that it knew that exposing plaintiff and his coworkers to huge amounts of asbestos caused a strong probability of death. In the fraud count, plaintiff charged that the defendant had fraudulently concealed the dangers of working with asbestos to plaintiff; that plaintiff was not aware of the hazardous properties of asbestos; that the defendant represented that asbestos was not harmful and made representations with the intent that plaintiff and his coworkers would rely upon them. The battery count alleged that the defendant had a conscious purpose to have asbestos become trapped in the lungs and bodies of the workers and the defendant “intended bodily harm to plaintiffs.” Of course, while some rare cases may survive a motion to dismiss (where the facts are taken in a light most favorable to the plaintiff), actually proving the allegations of specific intent will certainly prove much more difficult.
While employers should expect that there will be claims filed in circuit court which attempt to circumvent the exclusivity provisions of the Workers’ Compensation Act, the standard is extremely high. However, as we have already seen by the recent complaint against Walmart, it does not prevent plaintiffs from attempting to do so.