We have seen several wrongful death lawsuits filed the the families of deceased employees, claiming that the employers negligently caused the death of the decedents by, for example, “knowing” about the decedent’s COVID-19 symptoms and disregarding them. Here is an example on one such lawsuit in Illinois.
The Illinois lawsuit alleges “The lawsuit alleges Walmart was negligent because it did not adequately clean the store, enforce social distancing, notify employees about colleagues who were showing coronavirus symptoms and provide protective gear, such as gloves and masks.”
Candidly, we don’t know anything about Illinois law, but we can tell you that dog won’t hunt in Tennessee. Tennessee has a very strong “exclusivity doctrine,” which means that subject to several exceptions (discrimination lawsuits, for example – see Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277 (Tenn. 1999)) an employee (or in the event of death an employee’s family) only right to sue an employer for conduct in the workplace that gives rise to injury or death is under the law of worker’s compensation (not the law of negligence).
Tennessee’s Workers’ Compensation Law applies to covered employees who suffer from “personal injury or death by accident arising out of and in the course of employment without regard to fault as a cause of the injury or death.” Tenn.Code Ann. § 50–6–103(a). Tenn. Code Ann. § 50–6–108contains the workers’ compensation exclusivity provision. That section reads:
Right to compensation exclusive.—(a) The rights and remedies herein granted to an employee subject to the Workers’ Compensation Law on account of personal injury or death by accident, including a minor whether lawfully or unlawfully employed, shall exclude all other rights and remedies of such employee, such employee’s personal representative, dependents or next of kin, at common law or otherwise, on account of such injury or death.
Tennessee courts have created an exception to the exclusivity provision for intentional torts committed by an employer against an employee; these torts give rise to a common-law tort action for damages. Mize v. Conagra, Inc., 734 S.W.2d 334, 336 (Tenn.Ct.App.1987) ; King v. Ross Coal Co., 684 S.W.2d 617, 620 (Tenn.Ct.App.1984); Estate of Schultz v. Munford, Inc., 650 S.W.2d 37, 40 (Tenn.Ct.App.1982); Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn.Ct.App.1979) .
Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer’s standpoint, the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of general intentional injury…. Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, willfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.