White House Press Secretary Kayleigh McEnany officially took ill on Monday after receiving a positive coronavirus (COVID-19) diagnosis.
Almost immediately, a host of online takes appeared explicitly and implicitly arguing that McEnany was or could be liable for negligence.
As has often occurred during the Trump presidency, such scorching punditry has incorrectly attempted to use the law as an all-but catch-all salve for real and perceived moral and ethical transgressions. In other words, while anyone is free to waste money filing a lawsuit in the United States and many attorneys could plausibly craft such complaint, a negligence tort claim against McEnany is likely to fail.
There are four essential elements of negligence: (1) the defendant owes the plaintiff a duty of care; (2) the defendant’s conduct fell below that standard of care; (3) the defendant’s failure to meet the standard of care was the cause of the plaintiff’s harm; and (4) the plaintiff was actually harmed.
Another way of understanding the standard here is: duty, breach, causation, and damages–and all four elements are required for a negligence claim to survive.
Here, it’s unlikely that all those elements could be satisfied.
The duty of care element has long been recognized by U.S. courts to apply to carriers of infectious diseases–dating back several decades at least. But such lawsuits typically depend on a defendant’s actual or constructive knowledge of their communicability.
Here, the discussion–or a potential lawsuit–would likely focus on White House reporters who attended a White House press briefing on Thursday, October 1 and a North Lawn event on Sunday, October 4. During those events, McEnany spoke without a mask on–as is the wont of White House political employees who are attuned to President Donald Trump’s aversion to wearing masks in public.
Should McEnany have worn a mask while attending an in-door gathering? Morally and ethically the answer is yes–and science also says so. The criminal law is clearly silent. But for tort purposes, it’s not that easy to answer and all we have is hindsight.
The fact is that McEnany did not wear a mask during either event–but it’s still not clear whether she would qualify as owing a legal duty of care here because in both cases McEnany did not have actual knowledge that she tested positive for COVID-19. The timeline is instructive as to whether or not there’s an argument likely to pass muster that McEnany had constructive knowledge of her status–that is, whether or not she should have known better.
Regarding the Thursday morning press briefing, there are alternate and competing timelines regarding when the Hope Hicks diagnosis was known to the president and other White House staff. Some reports have said this was known in the morning–without specifying precisely when–while White House Chief of Staff Mark Meadows claims the Hicks diagnosis was only known in the early afternoon just as Trump took off in a military helicopter for a New Jersey fundraiser.
CNBC offers the following timeline: “While Hicks tested positive for the coronavirus early Thursday, McEnany was not immediately informed of the diagnosis, nor that she herself had been exposed to the virus, until Thursday evening, when press reports began to emerge about Hicks.”
McEnany, for her part, claims that she “definitively had no knowledge of Hope Hicks’ diagnosis prior to” the Thursday briefing–and as tough as it might be for the reader to credit a member of the president’s inner circle with making a true statement, a court would have to accord McEnany’s own statement regarding her knowledge of Hicks’ condition some evidentiary weight here. Taking McEnany at her word would likely defeat an argument that she even had constructive knowledge of her positive COVID-19 status on Thursday morning.
The Meadows/afternoon narrative would also work in McEnany’s favor. But the anonymously-sourced news media/morning narrative could also plausibly work in McEnany’s favor because there is a plausible amount of overlap between the president learning in the morning and McEnany took the dais just after 11:20 a.m.
In sum, the extant evidence here suggests McEnany did not have actual knowledge during the Thursday briefing and also very likely did not even have a chance to have constructive knowledge on Thursday either. New and additional evidence could–and would if it were detrimental to or disproved McEnany’s recollection of events–change the calculus entirely here, but we’re working with present facts.
What about the Sunday North Lawn event where McEnany removed her mask for–according to the White House--58 seconds–to answer reporters’ questions? Here, there is similarly not likely much in the way of an argument of actual knowledge but there is an argument in favor of constructive knowledge.
By Sunday, McEnany was well aware that she had been in close contact with others who contracted the virus. She would likely argue, to mitigate against a claim duty, that she had been tested on Satuday but came up negative. The coronavirus, however, often has a short latency period where it is undetectable.
One of the more relevant analogues here is the case law regarding negligent transmission of HIV/AIDS–and, as a general matter, that case law does not augur well for the McEnany situation for various reasons.
In one instructive case, per the California Supreme Court, the duty of care exists for “defendants who know or have reason to know of their [viral] infection is minimal” and the “tort of negligent transmission of [a viral load] does not depend solely on actual knowledge of [viral] infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection.”
But what are the totality of the circumstances here? Unfortunately, this is a legal issue far too novel for much of any clarity. But an inquiry would at least ask whether a duty based on constructive knowledge would attach to someone who has been in contact with other positive cases. Even that inquiry would have to undergo several permutations–such as: (1) does the duty still attach if such a would-be defendant took valid precautions?; (2) does the duty still attach if the would-be defendant was mandated to be in a hot-spot-like work environment due to their employment?; (3) does the duty decline or increase based on the precautions (or lack thereof) of others in the work environment? And so on…
Here, we can assume that by Sunday, McEnany “definitively” knew she had been exposed to people who tested positive–but whether or not that rises to constructive knowledge of COVID-19 status is an open question that only courts will be able to decide–and probably on an unhelpful case-by-case basis.
Assuming, for the sake of argument, that McEnany did have constructive knowledge of her COVID-19 diagnosis, the analysis then turns to whether or not she breached that duty on Sunday.
As noted, McEnany removed her mask for just shy of one minute to address reporters–which certainly screams “breach” if it is determined McEnany had the requisite duty. There’s also the argument that someone with constructive knowledge of being infected shouldn’t be in public whatsoever.
A recent Harvard Law blog by Shelly Simana outlines a few different breach theories for COVID-19 relevant to the present situation:
A breach of the duty to prevent the transmission of a disease, and in this case COVID-19, occurs when a person who tested positive for COVID-19 or a person who has had symptoms of COVID-19 leaves his or her house and visits public areas or uses public services. Due to the ease with which SARS-CoV-2 spreads, it is highly likely that the infected person will transmit it to other individuals. Therefore, if the infected person leaves the house knowing or suspecting that she or he is infected with COVID-19, then he or she breached the duty to prevent its transmission. Furthermore, given the extensive media coverage and the exposure people have to information about COVID-19, it seems difficult to argue that a person who knew or suspected that he or she was infected with COVID-19 and left his or her house took reasonable precautions.
But this is all just guesswork because such inquiries will, again, be adjudged on a case-by-case basis. Relevant to McEnany’s case is the question of whether she was social-distancing at the time her mask was removed (the White House says she was), whether any of the correspondents also removed their masks (unclear at present), and whether the time she went without a mask was scientifically relevant. On this last point, the Centers for Disease Control and Prevention (CDC) seem to say the answer is no.
Per CDC guidance on outdoor transmission of COVID-19: “The latest research shows that people must have sustained contact of 10 minutes or more and be less than 6 feet from others to be most susceptible to contracting COVID-19.” Thus, despite what the actual science actually ends up saying about this issue, McEnany would likely be able to argue that she was, in fact, abiding by CDC guidance on Sunday–as miraculous as this may sound.
All of this to say, the likelihood of McEnany being found in violation of a basic duty or the in-tandem element of breach is up in the air and, with the present evidence considered, mostly weigh against a court making such a finding.
Regardless of the already hard to prove duty-breach calculations necessary for a finding of common law negligence, COVID-19 poses particular problems when it comes to causation. To be clear, proving up a duty-breach situation is already dicey–but proving up causation viz. COVID-19 transmission is exceedingly unlikely.
A negligence tort plaintiff would have to prove that the defendant’s breach of the duty of care caused the former’s infection. Here, COVID-19 is the largest and most disastrous global pandemic in decades–it is widespread and has still-unknown latency and viability periods depending on the infected individual and would be carrier-host, respectively.
The upshot is that people may go around for days or weeks without knowing their status. Tracing the actual cause of most individuals’ positive diagnosis is–at least up until now, based on what we know about the virus itself, and in the present moment–a veritably tall order. The standard for civil cases is a “preponderance of the evidence” and potential plaintiffs would be hard-pressed to come by evidence linking their own positive diagnosis to McEnany’s positive diagnosis.
In other words, due to the widespread and highly contagious nature of COVID-19, the White House press corps would–even if ever other element turned in their favor–have an uphill battle (with scant case law in their favor–and, in fact, the opposite) proving that McEnany was the actual cause of their own illness.
[image via Win McNamee/Getty Images]