Last week, Judge Klausner, sitting in the Central District, dismissed a claim brought by a class of Princess Cruise Line passengers premised on their exposure to COVID-19 while aboard the now-infamous cruise ship that departed San Francisco for Hawaii on February 21, 2020, in Weissberger et al. v. Princess Cruise Lines, Ltd., 2020 WL 3977938 (C.D. Cal. Jul. 14, 2020).
Plaintiffs, Ronald and Eva Weissberger, while still on the ship, filed suit against the cruise line on March 9, as the Grand Princess docked at the Port of Oakland alleging a claim for negligence. Although the Weissbergers did not test positive for COVID-19 (or suffer symptoms of the disease), they sought to recover damages for the emotional distress they suffered based on their fear of contracting coronavirus while quarantined on the ship.
Defendant, Princess Cruise Lines, moved to dismiss, arguing Plaintiffs failed to state a claim. The district court explained, as an initial matter, that Plaintiffs’ negligence claim had to be considered as a claim for negligent infliction of emotional distress (NIED), since Plaintiffs did not seek to recover for any physical harm, instead alleging only that they suffered emotional distress and mental anguish associated with their “fear of developing COVID-19” on the ship.
Applying federal maritime law, the court then analyzed Plaintiffs’ claim under the rubric of NIED, which requires a plaintiff to satisfy the so-called “zone of danger” test. Under the pertinent “zone of danger” test, the only plaintiffs who may recover for negligently inflicted emotional distress are (1) ones who sustain “physical impact” as a result of the conduct at issue, or (2) ones who are placed “in immediate risk of physical harm” by that conduct. According to Plaintiffs, their claim against the cruise line arose under the second prong of that test. Under Plaintiffs’ construction of the “immediate risk” test, all they needed to demonstrate was that they suffered a “near miss” with the disease. Showing symptoms was not necessary.
Defendant, on the other hand, claimed Plaintiffs were categorically barred from recovering on a NIED claim, regardless of which theory of the “zone of danger” test they asserted, because disease-based emotional-distress claims require a plaintiff to show they either contracted the disease at issue or they exhibited symptoms of it.
Judge Klausner sided with Defendant, concluding that “proximity to individuals with COVID-19 and resulting fear of contracting the disease” was not enough for a plaintiff to recover for NIED. The Court observed: if Plaintiffs were right, and mere proximity to a disease were enough, the second “zone of danger” test would swallow up the first. The Court explained moreover that public policy considerations militated against adopting Plaintiffs’ view, which would open the door to “unlimited and unpredictable liability” associated with the coronavirus pandemic and create difficulties in separating valid from invalid emotional distress claims.
While the Court acknowledged Plaintiffs’ experience as captive passengers was undoubtedly unique, it declined to create a “cruise-ship exception” to the “zone of danger” test. The Court noted also the law disfavors carve-outs to the bright-line rules associated with NIED claims, stating that exceptions implemented to benefit sympathetic plaintiffs (presumably like the Weissbergers), would impose unintended consequences in terms of broad and unpredictable liability.
While the complete legal fallout from the COVID-19 pandemic will likely not be known for at least several years, this week’s decision is an important datapoint for predicting how courts will treat “fear of contracting coronavirus cases” brought against prisons, employers, restaurants, and other entities that are attempting to navigate the difficult intersection of health, law, and continuing operations.