The cruise ship industry has been subject to dozens of lawsuits in the wake of the COVID-19 pandemic. One of the more tenuous theories of liability brought by some plaintiffs is the claim that they suffered damages based on their "fear" of contracting COVID-19 from another passenger — even though they never contracted the illness and never suffered any symptoms themselves. A federal court in California recently ruled that this theory won't float. Weissberger v. Princess Cruise Lines, Ltd., 2020 WL 3977938 (C.D. Cal. 2020).
The Weissberger case arose out of a COVID-19 outbreak aboard the Grand Princess, a cruise ship operated by Princess Cruise Lines. By the end of its voyage, 21 people aboard the vessel tested positive for COVID-19, and those numbers rose precipitously in the following weeks. Even though the Weissberger plaintiffs did not test positive for COVID-19 or suffer any of its symptoms, they sued Princess, alleging Princess was negligent in handling the outbreak and seeking emotional distress damages based on their fear of contracting COVID-19.
The district court dismissed these claims. Under federal maritime law, a plaintiff seeking to recover for negligent infliction of emotional distress must satisfy the federal common law "zone of danger" test adopted by the United States Supreme Court. Under this test, recovery for emotional injury is limited to two categories of plaintiffs: (1) plaintiffs who sustain a physical impact as a result of the defendant's negligent conduct; and (2) plaintiffs who are placed in immediate risk of physical harm by that conduct.
The plaintiffs in Weissberger sought only to recover under the second prong of the Gottshall test, alleging that they experienced a "near miss" in contracting COVID-19 sufficient to justify recovery for emotional distress damages. The court rejected this argument, holding it would lead to bizarre results: a passenger who was actually exposed to COVID-19 but did not manifest symptoms would be denied recovery under the first prong, but the same passenger could recover under the second prong by experiencing a COVID-19 "near miss." The court also made clear that public policy supports this result. Allowing the plaintiffs' fear-based claims to proceed, the court noted, would "inevitably" lead to a "flood of trivial lawsuits, and open the door to unlimited and unpredictable liability."
While Weissberger is the only court decision on this issue so far, the lesson is clear. Under federal maritime law, the Gottshall test is likely to sink a plaintiff's claim for emotional distress damages where the plaintiff did not test positive for, or experience the symptoms of, COVID-19.
Originally published September 28, 2020
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