Written by Lena Fleischmann
In what is by far the most significant event this year and, for many of us, the most significant challenge of our lives so far, a disease never before known or named, COVID-19, caused by the coronavirus, is currently spiraling around the globe. When the disease arrived in force in Europe and news broke of multiple new infections in Italy, it took a toll not only on Milan Fashion Week but on the entire fashion industry. Many fashion and beauty companies closed their stores in northern Italy, and several luxury brands’ stock prices fell rapidly. (Other stocks quickly followed.) American and Delta Airlines temporarily suspended all flights between Milan’s Malpensa airport and New York’s JFK. The term “Were you in Milan?” — previously a question about participation during fashion week — took on a new and ominous meaning. No longer an inquiry about first-hand exposure to the latest fashion trends in Italy, it became an entry level caution to see if you would risk a handshake, to say nothing of cheek kisses.
A number of runway shows and events of Milan Fashion Week were either postponed or canceled. At Giorgio Armani, the show was conducted like a FIFA football game banned to fans out of concern for violence: the models came into an empty theater, and the brand posted a video of the show on its website. Burberry postponed its fall 2020 runway show in Shanghai, Chanel similarly postponed its show in Beijing, and Prada postponed its show in Japan. Asian designers were particularly hard hit, and travel bans impeded participation by buyers from China. In the last week it has become all too clear that the problem would expand exponentially and continue during the coming months as buyers seek to make decisions about styles only available physically for private inspection, if at all for sale in stores temporarily shut to the public. While some brands took a wait-and-see approach, others have refused to cancel their shows. Virgil Abloh, designer of Off-White, said he never really considered canceling his show. “If we had, it would send a message of panic,” he is reported to have said. Just the same, at the doors of runway shows that did go on, it was possible to see employees handing out face masks and hand sanitizers. Of course, all that is in the past since we now face restrictions prohibiting all gatherings of more than a dinner party.
Indeed, facemasks are the new must-have accessory. Several New York Fashion Week attendees wore them, as did designers and stylists. But we’ve seen this trend before, over concerns about the flu, during New York Fashion Week in 2018.
From a legal perspective, can you sue someone who put on a show or invited you into a showroom where you contracted COVID-19? Under US law, a negligence standard would likely apply. What should the party inviting people to attend an event have known about the risks and reasonably done to mitigate them? An old North Carolina case held that, “it is a well-settled proposition of law that a person is liable if he negligently exposes another to a contagious or infectious disease.” In 2006, the California Supreme Court found a defendant liable for the negligent transmission of HIV when he or she “under the totality of circumstances, had reason to know of the infection.” Bear in mind that the concepts of contributory negligence and assumption of risk also would no doubt apply because, at this point, anyone attending an event that for some reason has not been cancelled would be hard pressed to argue that he or she was not fully aware of the risks.
Under German law, a person can sue another for damages and for compensation for pain and suffering (§§ 823 I, 253 II BGB). To succeed, the plaintiff has to prove that the transmission of the virus is a bodily injury, for which the defendant is responsible. The factual characteristics of a bodily injury within the meaning of the German code include the effects of viruses, such as COVID-19. The plaintiff would have to prove that, at the time of the transmission, the defendant either (a) was aware of being infected and nevertheless intentionally engaged in the conduct or (b) that the transmission was foreseeable and avoidable, but the defendant negligently failed to exercise the general duty of reasonable care. In addition to that, there is the possibility of the accused being charged with negligent bodily harm (§ 229 StGB) and even negligent manslaughter (§ 222 StGB) if death resulted.
In the case of coronavirus transmission liability, either in Germany or the United States,, a plaintiff would need to demonstrate that the defendant not only had actual knowledge that he or she was infected (which likely would exclude anyone without obvious symptoms) and that the defendant was the source of the transmission. These are high hurdles. Putting the law aside, the guiding principles for us all remain the same: be prudent, be kind and strive to keep all of us safe.
1. Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920).
2. John B. v. Superior Court, 38 Cal. 4th 1177, 137 P.3d 153 (2006).
Lena Fleischmann is a German law student and a Referendarin at Phillips Nizer LLP.
