The Law and Social Distancing

Student: Mariah Hogan

Mentor: Robert Claridge

Abstract

It goes without saying that we are in an unprecedented time, both American as well as global history amidst the COVID-19 outbreak. Of the innumerable changes the virus has affected within our lives, perhaps the most prevalent has been in the utilization of “social distancing” protocols enacted in most states, which serve to protect against the continued spread of the virus by greatly restricting our ability to gather publicly. However, despite the altruistic nature of the protocols, we have heard repeatedly stressed throughout the news and media that all have not been in total compliance. With some jurisdictions going so far as to attempt to enact policies that would allow for fines or other modes of punishment of being found in violation of the protocols, many states and other local governments have been scrambling to do what they can to encourage mass compliance without having to go so far as to enter “shelter in place”-like orders.
The purpose of this project is to evaluate the extent to which civil liability beneath a theory of negligence for persons found to be in violation of the social distancing suggesting could serve as an effective remedy to this rapidly evolving public health problem. Negligence is grounded by four key elements in civil law: duty, breach, causation, and damages. Within this project, we want to apply this framework to individuals who refuse to observe social distancing. For example, beginning with duty, we are interested in assessing where exactly it is that the threshold of duty may become implicated – such as in the enactment of social distancing orders, or perhaps even sooner. We will then continue our analysis through each of the elements of civil liability beneath a theory of negligence for individuals who violate the social distancing protocols enacted in their jurisdictions to determine if and how effective of a remedy civil law may be able to provide in the face of these confusing and tumultuous times.

Presentation

2 thoughts on “The Law and Social Distancing”

  1. Christine Henderson

    I enjoyed your presentation. Important and timely topic to discuss. Do you think the duty of care, the two questions you presented, and breach of conduct would have different outcomes if they were based solely on a governor’s proclamation without a state of emergency in place? For example, in Washington under RCW 43.06.220 state of emergency—powers of governor pursuant to proclamation (RCW 43.06.220) gives the power of the governor under a state of emergency to order stay at home. Thereby, not making it a civil matter, but a criminal matter. Keeping in mind, in Washington the Governor has issued several orders including the Stay Home-Stay Healthy proclamation, 20-25, prohibiting people from leaving their home or place of residence except to conduct or participate in (1) essential activities, and/or (2) employment in providing essential business services and also under a state of emergency. Also, many stay-at-home orders include language specifying that noncompliance will be enforced through civil or criminal penalties.

    1. I certainly think that the state of emergency we are presently finding ourselves in serves to affect the way we understand the duty of care as well as breach of conduct by adding a heightened element of urgency and – I would like to think – the necessity of altruism. Further, the gubernatorial nature of Washington State’s Stay at Home orders creates a criminal element to those not found in compliance, however this gets complicated when – as I introduced early in my presentation – the exact law enforcement agencies that are supposed to enforce these civil and/ or criminal penalties are refusing to, such as we have observed in Franklin and Snohomish counties, respectively. When this happens, I think civil remedies offer the best – if not only – opportunity for victims to secure relief.

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