Can Mask Makers Be Liable If You Contract COVID-19?
If you follow personal injury law news, the gradual spread of COVID-related cases into the world of legal claims was likely something you expected to happen eventually. And, sure enough, people are starting to look at how exposure to the novel coronavirus, work environments, and even attacks by anti-maskers coughing in people's faces could lead to personal injury lawsuits.
One population that is starting to get more attention is that of mask makers, both professional garment companies and individual sellers like those you can find on sites like Etsy. For the most part, if the sellers and makers use certain wording during their sales, they can likely avoid being held liable if you contract COVID-19 despite wearing their masks. But there could be some pitfalls that make them more likely to be the target of a court case. If you have contracted COVID-19 and are looking at why and who might have given it to you, going after the mask makers may or may not be a good idea.
Claims and Perceptions
Many mask makers are careful to point out that their masks are not foolproof. Cloth masks especially — makers often use language that points out that these are not medical-grade masks, and they can't guarantee you'll be completely protected by wearing the mask. If these mask makers are selling masks that meet guidelines issued by health departments — room for a filter, two to three layers or more, and so on — they really can't be held liable unless you can show that the masks were not made well. And even then it would be difficult to pin blame on them.
However, if the masks were made of material that was really too thin despite multiple layers, and if the makers claimed the masks would keep you safe from COVID-19, you could have a case. Those claims are too definite and not verifiable at all.
Your perceptions, too, can affect the case. If you thought you were buying a medical-grade surgical mask that turned out not to be surgical-grade, and the seller made no attempt to dissuade you of that notion, there could be some blame. The virus can show up anywhere, but if you feel like you're protected, you might subconsciously be a little more lax in your behavior, and that can lead to exposure.
Your Own Activity
Speaking of your own behavior, your own activity can play a role. Maybe the seller claimed the mask would protect you, but then you kept wearing it chinguard-style (in other words, not covering your mouth or nose) once you entered a store full of people. Or, maybe you wore it, but you spent hours each week in a bar, where you were exposed to many people in close contact. In those cases, even false claims by the mask maker might not make them liable because your behavior included taking a lot of risks that have been shown to increase the possibility of viral transmission.
Other Incidents That May Have Led to the Illness
Maybe the mask maker said the mask would protect you. But then you got into an altercation with someone running around and coughing on people who wore masks. You'd have a tougher time blaming the mask maker for transmission after an incident like that because it's kind of implied that masks should help you if you also take other precautions and avoid such blatant exposure. Plus, the mask maker couldn't help it if someone else decided to be a jerk.
That being said, you might still have a personal injury case, just not one that holds mask makers liable for your illness. You may have had to go into work with little protection or risk being fired, for example, or you may have had to deal with a specific person who kept getting too close and insisted on talking to you, only to later test positive. Speak with a personal injury attorney to determine if you have a case.