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Walmart's COVID-19 Problem

How plaintiffs are bringing direct actions against employers like Walmart for injuries or deaths allegedly caused by COVID-19.

June 04, 2020 Photo

COVID-19 has infiltrated nearly every corner of our lives since reaching pandemic proportion. It was only a matter of time until it would surface in the legal world. COVID-19 has already led to retaliation claims from front line employees who were terminated for complaining about protective equipment, new publications from the Occupational Safety and Health Administration (OSHA) and state-by-state emergency orders creating or extending tort immunities to front line health care providers and facilities.

Personal injury suits based on COVID-19 were expected to fill court dockets. What was not so easily expected was a direct civil suit against an employer claiming that the employer negligently caused an employee to contract and subsequently die from COVID-19.

On April 6, 2020, the administrator of the Estate of Wando Evans filed suit against Walmart and local property owner, J2-M Evergreen, LLC. Evans v. Walmart, Cook County, Cause No. 2020 L 003938, alleging that Walmart and Evergreen negligently, and willfully and wantonly:

  • 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.

The Plaintiff alleges that as a result of these acts of omissions, Wando Evans contracted COVID-19 and ultimately died as a result of complications.

In this article, we discuss the hurdles Ms. Evans and other similar plaintiffs face in bringing a direct action against an employer for injury or death allegedly caused by COVID-19.

Exclusive Remedy Doctrine

The primary obstacle any employee faces in attempting to bring a direct civil tort action against an employer is the Exclusive Remedy Doctrine. All 50 states have enacted worker’s compensation programs and, in one form or another, most states preclude an employee from filing a civil suit against his or her employer for personal injuries sustained while working. Under Illinois law for example, an employee’s exclusive remedy against an employer lies within the Workers’ Compensation Act, 820 ILCS 305/5(a).

Without more, direct actions such as Evans are subject to dismissal, but as Oliver Wendell Holmes, Sr. once wrote, “[t]he young man knows the rules, but the old man knows the exceptions.” Holmes, Sr. Medical Essays. There are certainly judicially created exceptions to the Exclusive Remedy Doctrine that will likely be exploited by plaintiffs to avoid dismissal or summary judgment of COVID-19 cases.

Intentional Torts

One exception to the Exclusive Remedy Doctrine exists when a plaintiff sufficiently alleges that the employer’s acts or omissions constitute an intentional tort. An intentional tort is not “accidental” and therefore the Exclusive Remedy Doctrine does not preclude an employee from suing his employer directly for injuries sustained as a result of an intentional tort. Rosales v. Verson Allsteel Press Co., 41 Ill. App. 3d 787 (1976). Illinois law recognizes that an employee’s cause of action for an intentional tort must allege the existence of a specific intent to harm—not merely the knowledge of a strong probability of injury. Garland v. Morgan Stanley & Co., 2013 IL App (1st) 112121 ¶29.

In Evans, however, the Plaintiff has not attempted to allege that Walmart’s actions were intentional. The Plaintiff has only alleged that Walmart’s acts and omissions were negligent and/or willful and wanton. Negligent acts are “accidental” and not exempted from the exclusive remedy provision. While it may sound more heinous, willful and wanton conduct also does not rise to the same level of purposefulness as an intentional tort. Lannom v. Kosco, 158 Ill. 2d 535, 541 (1994). As such, willful and wanton claims such as those asserted in Evans would also be barred under the Exclusive Remedy Doctrine.

There is one more important aside. While seldom seen, even if a plaintiff has properly pleaded that an employer has committed an intentional tort, the plaintiff’s civil suit is still barred if the plaintiff has received any workers’ compensation benefits. Locasto v. City of Chicago, 2016 IL App (1st) 151369.

Dual Persona Doctrine

Another notable basis for circumventing the Exclusive Remedy Doctrine is asserting that the employer’s liability is actually based upon an employer’s second capacity that confers obligations that are completely independent of those imposed on it as an employer. Ocasek v. Krass, 153 Ill. App. 3d 215, 217 (1987). This exception is known as the Dual Capacity Doctrine or Dual Persona Doctrine, and is only recognized three jurisdictions: California, Michigan and Illinois.

In order for the Dual Persona Doctrine to work as an exception to the Exclusive Remedy Doctrine, an employee/plaintiff must allege facts showing that there is a second capacity that generates obligations that are completely unrelated to those flowing from the employer/employee relationship. Incadela v. Giannini, 250 Ill. App. 3d 23, 27 (1993).  When the obligations of both capacities are so intertwined that the conduct in one capacity cannot be deemed to generate obligations completely unrelated to those in the other capacity, the plaintiff cannot utilize this exception as a basis for liability. Stewart v. Jones, 318 Ill. App. 3d 552, 565 (2001).

In Evans, the Plaintiff alleged that some of the acts and omissions affected not only employees, but “employees and others” which presumably includes members of the general public. If this was an attempt to bring the cause of action within the Dual Persona Doctrine, it fails. Again, the exception does not apply when the obligations as an employer and the obligations as a business invitor are intertwined and the Plaintiff has not articulated separate and distinct obligations, only separate victims.

What’s Next

Even if an employee/plaintiff properly alleged an exception to the Exclusive Remedy Doctrine, the very unique nature of the COVID-19 pandemic creates some interesting obstacles to this or any other plaintiff getting past the summary judgment stage or a defense verdict. Two notable issues are the scope of an employer’s duty and whether the defendant’s conduct actually caused the plaintiff to contract the virus.


In any tort action, a plaintiff must establish that the defendant owed a legal duty to the plaintiff. Whether a duty exists is a question of law, but it is also a question of public policy because it requires courts to examine whether a plaintiff and a defendant have such a relationship to each other that the law imposes an obligation on the defendant of reasonable conduct for the plaintiff's benefit. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388-89 (1998). No legal duty arises unless the harm is reasonably foreseeable. Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 42 (2004).

No reported Illinois case has ever held that CDC recommendations are a source of a legal duty. However, pleading CDC guidelines as a source of is not without merit. In Munn v. Hotchkiss School, 326 Conn. 540, 560 (2017), the Connecticut Supreme Court held that, as a matter of public policy, a school had a legal duty to ensure students took appropriate protective measures to be taken to avoid insect-borne encephalitis during a school trip to China and that the scope of that duty could be derived from CDC publications regarding safety measures to undertake when visiting China.

In Evans, the Plaintiff alleged that Walmart had a duty to implement CDC and OSHA COVID-19 recommendations, but did not allege which specific CDC and OSHA recommendations were not followed.  


Beyond the novel issues regarding the existence and scope of legal duty, a pandemic which is practically everywhere, and not just in the defendant’s workplace, could spell failure for a plaintiff who must establish that the acts or omissions of the defendant caused the plaintiff to contract the virus.

Causation is normally a question of fact, and as such, is generally left to a jury to decide.  However, where a plaintiff cannot make a threshold showing that a defendant’s actions were a proximate cause of the injury or death, the issue can be decided as a matter of law. Enbridge Energy, L.P. v. Village of Romeoville, 2020 IL App (3d) 180060 ¶30.

To establish proximate cause, a plaintiff bears the burden of affirmatively and positively showing that the defendant's alleged negligence caused the injuries for which the plaintiff seeks to recover. Liability against a defendant cannot be predicated upon speculation, surmise or conjecture. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 795 (1999). More importantly, a plaintiff must establish with "reasonable certainty" that the defendant's acts or omissions caused his injury. Keating v. 68th and Paxton L.L.C., 401 Ill. App. 3d 456, 473 (2010).

However, a plaintiff can establish that the defendant’s conduct was a proximate cause through circumstantial evidence, i.e., a fact or group of facts logically or through common sense leads to a conclusion of another fact. While this certainly sounds like a world of possibilities is opened up for a plaintiff, courts have consistently restricted the value of circumstantial evidence and held that a fact cannot be established through circumstantial evidence unless the circumstances are so related to each other that it is the only probable, and not merely possible, conclusion that may be drawn. Wiegman, 308 Ill. App. 3d at 796. 

During April, approximately 800 employees at the South Dakota Smithfield Foods plant tested positive for COVID-19 and another 206 cases could be traced to employees.  Report of the Department of Health and Human Services, April 22, 2020. The alarming number of employees and related cases emanating from just one plant would likely be considered sufficient circumstantial evidence to establish that the employees contracted COVID-19 through their workplace.

Evans does not stand on the same footing. While the Complaint in Evans alleges that Walmart knew that several of its employees showed symptoms of the virus and that another employee died from COVID-19 after Mr. Evans died, the ability of the Plaintiff to prove causation—either directly or circumstantially—is questionable. 


At the time of this publication, Walmart has not been served with the Evans Complaint and has not filed a response. It is anticipated that Walmart will file a motion to dismiss asserting the Exclusive Remedy Doctrine as a complete bar to the direct civil action against it.

However, Evans demonstrates that because of the phenomenal nature of the pandemic, employers are likely to see more employees attempting to pursue civil liability against employers for illness and death because of the virus. The COVID-19 outbreak is certainly an extraordinary event and never envisioned during the 244 years that American legal principles of personal injury liability have evolved. Despite the clear application of principles such as the Exclusive Remedy Doctrine, the pandemic will nevertheless likely create new legal rules and exceptions as cases such as Evans work their way through the courts.

About The Authors
Jeffrey E. Kehl

Jeffrey E. Kehl is income member at Bryce Downey and Lenkov LLC.  jkehl@bdlfirm.com

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