A wrongful death lawsuit recently filed by the estate of a Walmart Inc. employee in Illinois provides a glimpse of emerging liability theories for injuries allegedly arising from COVID-19 exposure in the workplace. According to the lawsuit filed on April 6, Waldo Evans died on March 25 after contracting COVID-19 at the Walmart Supercenter where he worked—four days before another employee at the same store died from complications due to coronavirus. The lawsuit was filed in Cook County, IL, a jurisdiction ranked as the seventh worst in the nation for defendants (along with other Illinois counties, Madison and St. Clair) according to the American Tort Reform Foundation’s “Judicial Hellholes” report for 2019-2020.
The plaintiff’s complaint asserts that Walmart and J2M-Evergreen, LLC (the alleged owner and operator of the shopping center containing the Walmart store) breached their duty to Evans in a variety of ways. Plaintiff claims that Walmart knew other employees at the store were showing symptoms of coronavirus and that Walmart should have warned its employees and ceased store operations after learning of the symptoms. The lawsuit also asserts that Walmart did not follow OSHA and CDC guidelines, and failed to implement policies for promoting and enforcing social distancing, identifying and isolating sick employees, inspecting the store for cleanliness, and providing employees with personal protective equipment and antibacterial soaps, wipes or other recommended cleaning agents. In addition, the plaintiff alleges the store lacked sufficient engineering controls and physical barriers to combat the spread of the virus, such as air filters and plastic sneeze guards. Failures in hiring and training practices have also been claimed, including alleged failures to personally evaluate the health status of potential employees before hiring them and to train employees in proper risk mitigation procedures.
Walmart has responded in a statement that it took action to reinforce its cleaning and sanitizing measures at the store, including using an outside cleaning company and performing a deep cleaning of key areas, and that the store passed a third-party safety and environmental compliance assessment as well as a health department inspection. The retail giant also noted other company-wide efforts, including installing sneeze guards at registers, placing social distancing decals on the floors and limiting the number of customers in a store at a given time. As with negligence actions in general, the central issue for the fact finder will be whether the defendants’ actions were reasonable in light of what they knew or should have known as to the alleged hazard on the premises, in this case, COVID-19.