The U.S. Chamber Institute for Legal Reform (ILR) recently released a new brief examining the potential for plaintiff attorneys to use creative “public nuisance” theories to seek damages against businesses for COVID-19.

With the widespread nature of the global pandemic, it is likely that plaintiffs will seek extensive damages through traditional tort claims and contract breaches. But the ILR paper points out that litigators could also turn to the less common, but growing, public nuisance theory to seek compensation from businesses. Plaintiffs bringing these types of claims argue businesses are responsible for spread of the virus and related injuries.

Lawsuits using public nuisance theory in the context of the COVID-19 pandemic have already been filed against defendants including Smithfield Foods and McDonalds. The ILR paper suggests that state and local governments could be future defendants for these types of public nuisance lawsuits.

ILR argues that COVID-19 public nuisance claims are outside the traditional scope of the public nuisance theory, and therefore these types of cases should be dismissed. The brief argues that legislators, executives, and agencies – not courts – are better positioned to address the public policy challenges of COVID-19. The international scale of the pandemic prevents courts from being able to address the problem comprehensively, and policymakers can provide alternative relief for plaintiffs seeking damages.  

ILR and American Tort Reform Association are both closely watching the use of public nuisance theory in COVID-19 and in other areas of litigation, such as climate change, opioids, PFAS chemicals, and lead paint. Read more about previous ILR and ATRA public nuisance research.