By: Jeff Kehl
On 4/6/20, the administrator of the Estate of Wando Evans filed suit against Walmart and local property owner, J2-M Evergreen, LLC, alleging that Walmart and Evergreen negligently, willfully and wantonly caused the death of Walmart employee, Wando Evans (Cook County, Cause No. 2020 L 003938). The estate alleges that Walmart and J2-M Evergreen:
- failed to implement social distancing guidelines promulgated by the federal and state authorities;
- failed to properly cleanse and sterilize the store to prevent infection, and failure to properly train personnel to implement and follow procedures designed to minimize the risks of contracting COVID-19;
- failed to provide Wando Evans and other employees with personal protective equipment such as masks, latex gloves and other devices designed to prevent infection of COVID-19, as well as failure to provide employees with antibacterial soaps, antibacterial wipes and other cleaning agents as recommended by the CDC;
- failed to periodically interview and evaluate its employees for signs and symptoms of COVID-19, as well as failure to warn Wando Evans and other employees that individuals at the store experiencing symptoms may have been infected by COVID-19;
- failed to follow recommendations and descriptions for mandatory safety and health standards promulgated by the DOL and OSHA, and failure to conduct periodic inspections of the conditions and cleanliness of the store to prevent and/or minimize the risk others contracting COVID-19 as recommended by the CDC;
- failed to follow the guidelines promulgated by the CDC with regard to keeping a safe and healthy environment, including failure to prepare and implement basic infection prevention measures, failure to develop an infectious disease preparedness and response plan and failure to implement engineered-controlled devices designed to prevent COVID-19 infection, such as installation of high efficiency air filters and physical barriers such as sneeze guards;
- failed to develop policies and procedures for prompt identification and isolation of sick people and failure to cease store operations and close when employees were experiencing symptoms of COVID-19;
- hiring employees via telephone or other remote means in an expedited process without personally interviewing or evaluating employees to see if they were experiencing signs and symptoms of COVID-19.
Plaintiff alleges that as a result of these acts of omissions, Wando Evans contracted COVID-19 and ultimately died as a result of complications.
We have received numerous calls and emails from our clients regarding the viability of this lawsuit. The top question we have received is ‘why isn’t this suit barred by the exclusive remedy provision of the Illinois Workers’ Compensation Act?’
The exclusive remedy provision is certainly the jumping off point for evaluating just how far this plaintiff and other similar plaintiffs can go with direct actions against their employers for COVID-19 exposure. The Illinois Workers’ Compensation Act is meant to be the exclusive remedy for workers’ compensation benefits against his or her employer. The employee is barred from bringing a common law suit against his employer unless the employee can show a legally recognized exception to The Exclusive Remedy Provision of the Act exists. In order to circumvent the Exclusive Remedy Doctrine on common law actions, a plaintiff must prove that the injury:
- was not accidental;
- did not arise out of employment;
- was not incurred during the course of employment; or
- was non-compensable under the act.
There are exceptions to the exclusive remedy provision. For example, under Illinois law, an intentional tort is not “accidental” and therefore the exclusive remedy provision does not preclude an employee from suing his employer directly for injuries sustained as a result of an intentional tort.
Here, however, Plaintiff has not alleged that Walmart’s actions were intentional. Plaintiff has only alleged that Walmart’s acts and omissions were negligent and/or willful and wanton. Negligent acts are “accidental” and not excepted from the exclusive remedy provision. While it may sound more heinous, willful and wanton conduct does not rise to the same level of purposefulness as an intentional tort. As such, the exclusive remedy provision would bar the claim of willful and wanton conduct.
The second major basis for circumventing the exclusive remedy provision is to assert that the cause of action is not based on a plaintiff’s employment and/or that the injuries were not caused during the course of employment. Under Illinois law, the exclusive remedy provision can be avoided by asserting that employer’s liability is based upon an employer’s second dual capacity. This capacity creates legal obligations on the employer’s part to the general public, and not just to its employees. This exception is known as the Dual Capacity Doctrine or Dual Persona Doctrine.
Applying that doctrine here, Plaintiff alleged that some of the acts and omissions affected not only employees, but also by “employees and others,” which presumably includes members of the general public.
Looking at Plantiff’s specific acts and omissions allegations, some of them are solely related to protecting employees. Those alleged acts and omissions clearly have to be dismissed under the exclusive remedy provision. We are curious to see how the court will treat those allegations that address not only employees, but “employees and others.” It may be possible for Plaintiff to move forward based on those acts and omissions.
With the number of people who have and likely will be exposed to COVID-19, Evans will be an important case to monitor. Ultimately, new law will be made on novel issues such as whether CDC recommendations can serve as a basis for a legal duty and how a plaintiff can prove causation when COVID-19 is more widespread than just the subject Walmart store.
Watch our video discussion of the case below.