Coronavirus response sparks student-led class action against Liberty University

On April 13, 2020, an unnamed student filed a class action against Liberty University that seeks to recover fees for services the university failed to provide after the onset of the Covid-19 pandemic forced the school to close or suspend the vast majority of its operations.

The student brought the complaint against Liberty University anonymously out of fear that officials from the school would retaliate or harass the individual in response. Jerry Falwell Jr., the school’s president, has been the subject of condemnation for downplaying the danger the novel coronavirus posed to his students, faculty, and staff on campus. For example, the filing on Monday describes an incident when Falwell called a parent of a student a dummy for worrying about the impact of the virus on students and their families.

Despite suspending the operation of the overwhelming majority of student services, the complaint alleges that Liberty University decided to remain “open” as an illusion to justify its decision to not refund money the students paid for the semester. It goes further to allege that the university is profiting from the Covid-19 pandemic by collecting fees from students without incurring the full cost of providing the corresponding services, all the while it stands to receive upwards of $15 Million in stimulus funds, according to the class action filing.

Theories of relief such as breach of contract, unjust enrichment, and/or conversion are alleged in the action to recover a refund on behalf of a class of students who paid semester fees but were unable to enjoy the services expected upon payment. 

As The Hill reports, Liberty University said the lawsuit has no merit, noting that it was offering $1,000 in credit to students who have decided to move out of campus housing.

However, the lawsuit addresses that contention by alleging the $1,000 credit is a woefully inadequate alternative to refunding student fees, as it does not apply to non-graduating students who will not return to campus in the fall, it does not apply to students who did not live in residence halls, and it required a student to decide by March 28, 2020, a deadline that many students missed because, as the complaint alleges, Liberty University did not provide adequate time and information to make an informed decision. In any event, the credit failed to refund students for semester fees intended to cover miscellaneous campus services outside of room and board.

Walmart faces allegations of negligence for its response to Covid-19 pandemic

 Walmart negligently caused the death of an employee because the retailer failed to adequately clean its store, enforce social distancing, notify employees about colleagues who were showing coronavirus symptoms, and provide protective gear, such as gloves and masks, alleges the family of a 15-year employee who died on March 25, 2020 from Covid-19 in a wrongful death action filed on Monday in Cook County, Illinois.

The lawsuit additionally claims that store managers ignored the employee when he alerted them to his symptoms, and moreover, that managers knew of other employees at the store who also exhibited symptoms of the disease. Tragically, another man who worked at the store died from Covid-19 on March 29, 2020.

According to CNBC’s report, Walmart claims it deep-cleaned the store, hired a company to clean the store, and had a third-party and a health department inspect it. The retailer has also implemented other safety measures in response to the pandemic, including the addition of sneeze guards at cash registers, the installation of decals on the floors about social distancing, and a reduction of customers in its stores. 

The basis of the family’s wrongful death claim is that the retailer negligently disregarded its duty owed to the employee to mitigate the risk of infection and illness; and, in turn, that alleged dereliction of duty proximately caused the employee to ultimately die from the virus. The looming question this case presents for employers and employees across the country is this: Did Walmart exercise the level of care expected of a reasonable, prudent person?

The answer will likely play out in similar lawsuits throughout the nation in the next few months and years, as each jurisdiction will have the opportunity to fashion a standard of care expected of employers to mitigate the risk of infection for customers and employees. Meanwhile, employees of major retail stores are rightfully scared for their wellbeing, and the sudden onset of the pandemic has left employers unsure of the best methods to protect employees and customers from viral infection.

That creates a perfect storm ripe for litigation when an outbreak happens. Until a reasonableness standard can be better understood in light of the Covid-19 pandemic, the Occupational Safety and Health Administration (OSHA) issued a non-mandatory coronavirus guidance that can help employers adapt to the changing landscape of expectations.

Linked here, it encourages them to develop an infectious disease preparedness and response plan (e.g., identify potential sources of infection in and outside of the workplace, identify and implement controls to reduce exposure, such as use of personal protective equipment, prepare for increased absenteeism and supply chain disruptions, and consider downsizing or closing operations); prepare and implement basic infection prevention measures (e.g., promote hand washing, cover coughs and sneezes, promote “social distancing,” and encourage employees to stay home if ill); develop procedures for prompt identification and isolation of ill employees/visitors; and to follow existing OSHA standards, particularly taking additional measures to maintain a clean and sanitary workplace. 

Allegations of negligence on the part of those in charge will continue to rise as Covid-19 continues to spread. Some members of America’s working class do not have the ability to self-isolate, as their position of employment for an emergency service demands physical presence at the workplace. An employer’s failure to keep them safe, within reason, will certainly justify causes of action like the one filed against Walmart.

The summer of Covid-19 liability waivers: will courts enforce them in North Carolina?

Probably not, and there’s good reason for it. If you visit the dentist, if you get your haircut, or if you venture to a pool this summer, then you will likely be asked to sign away your right to sue if exposure leads to infection of Covid-19. For example, the waiver required to register for Donald Trump’s campaign rally in Tulsa made national news, reading as follows:

“By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present. By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19.” 

Some states are more friendly to liability waivers than others. In North Carolina, though, contracts “exempting persons from liability for negligence are not favored by the law and are strictly construed against the party claiming such exemption." Jordan v. Eastern Transit & Storage Co., 266 N.C. 156, 161, 146 S.E.2d 43, 48 (1966). As such, a clause will not be construed as exculpatory "in the absence of explicit language clearly indicating that such was the intent of the parties." Hill v. Carolina Freight Carriers Corp., 235 N.C. 705, 710, 71 S.E.2d 133, 137 (1952) See also, Alt. Const. & Material Co., v. Adcock, 161 N.C. App. 273, 588 S.E.2d 36 (2003) (holding that unclear and/or ambiguous language is not sufficient to support the defendant’s absolution from liability in reliance on an exculpatory clause of contract).  

Moreover, even if an exculpatory clause is otherwise valid, courts retain the authority to strike it when the clause “violates a statute, is gained through an inequality of bargaining power, or is contrary to a substantial public interest.” Fortson v. McClellan, 131 N.C. App. 635, 508 S.E.2d 549 (1998). In Fortson, the North Carolina Court of Appeals declined to enforce a liability release absolving the defendants from the duty to use reasonable care because the interest of public safety outweighed free market principles that would have otherwise bound the parties to contract. Id. The plaintiff in that case signed a waiver in order for the defendant to instruct her on how to safely operate a motorcycle; she suffered personal injury when the motorcycle the defendant assigned her malfunctioned. Id. After brining her lawsuit, the defendant relied upon the exculpatory clause in their contract as a liability shield, but the Court of Appeals refused to enforce it, explaining that “given the hazards to the public associated with motorcycle instruction, and the extensive regulation of motorcycle use, it would violate public policy to allow instructors...to absolve themselves from the duty to use reasonable care.” Id. at 559.

North Carolina courts might extend that logic to Covid-19 liability waivers because the health and safety of the entire public, not just the signatories to the contract, demands that businesses use reasonable care to mitigate the risk that patrons spread the disease to the general public. Simply, the risk is too great to the entire public for a business to abrogate its duty to use reasonable care and that interest supersedes the competing freedom of contract policy. A negligence claim would therefore likely fall on its merits in North Carolina, setting the stage for a broader debate on what protective measures align with the level of care a reasonable, prudent person would take in the same situation.

Nurse fired after warning supervisors about the use of inadequate protective equipment; she filed a lawsuit in response.

A month ago, Laura Mazurkiewicz was a nurse at Northwestern Memorial Hospital in Chicago bracing for her place in the frontline of the city’s battle against the impact of the novel coronavirus disease (Covid-19).

As predicted, Mazurkiewicz’s duties exposed her to the disease beginning in March; however, despite that exposure, she contends that Northwestern Memorial provided protective equipment that failed to adequately protect against the spread of covid-19. Law360 reports that she distributed an email to colleagues and supervisors to express her concern, stating that N-95 face masks, as opposed to the ones Northwestern Memorial required nurses to wear, filter out 95% of airborne particles, and thus, N-95 masks are dramatically better suited to protect patients, staff, and employees against the disease.

Mazurkiewicz’s email advised that she intended to wear the N-95 masks only instead of the inadequate ones the hospital supplied; and, the next day, she came to work wearing her own N-95 mask. 

That was the day she lost her job.

On Monday, Mazurkiewicz filed a lawsuit against Northwestern Memorial alleging that the hospital’s decision to terminate her employment was unlawful retaliation against her right to speak out against her employer’s malfeasance. The complaint contends the hospital’s path to silence a concerned nurse threatens to chill speech directed at supervisors to take adequate measures to protect staff and employees against the disease. She underpins her theory of relief on whistleblower protection and retaliatory discharge laws available to employees in Illinois. Many states, including North Carolina, have similar laws which provide relief for unlawful termination decisions.

Meanwhile, Law360 reports that Northwestern Memorial claims it takes the complaint seriously and is under review, adding that “the health and well-being of our patients, our staff, and our employees is our highest priority.”

Northwestern Memorial Hospital is a clinical affiliate of the Northwestern University Feinberg School of Medicine, a nationally acclaimed medical school with an endowment of 2.023 Billion Dollars.

A shortage of N-95 masks at one of the nation’s wealthiest medical schools in one of the world’s wealthiest nations is a scathing indictment on the allocation of healthcare resources in this country. Mazurkiewicz now prays for relief in excess of $50,000 on the basis of the hospital’s unlawful discharge.

An overview of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act)

Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) on March 27, 2020, a bill with a $2 Trillion budget that aims to blunt the impact of the sharp and sudden recession the Covid-19 pandemic injected into the American economy. In a matter of weeks, scores of Americans lost their jobs, many more shuttered their businesses, and students nationwide hit pause on their education, plunging the country into scary and uncharted waters as the nation continues to battle the pandemic.

Unemployment Assistance

Millions of Americans became unemployed already as a direct result of the Covid-19 pandemic. That number portends to rise before it falls. The CARES Act calls for major temporary changes to unemployment assistance programs in response to the expected stark disruption to the livelihoods of the nation’s most economically vulnerable individuals and families.

These are very strange and difficult times for everyone. There is absolutely no shame in asking for help. If you lose your job, please file a claim with the unemployment office. In North Carolina, please click this hyperlink for instructions on how to apply. There is no penalty for submitting a claim for unemployment benefits as long as you answer questions truthfully. So, even if you’re not sure if you’re eligible, please apply and do not wait.

Self-Employed Individuals and Independent Contractors

Self-employed individuals and independent contractors are traditionally left out of unemployment benefit programs. That’s not the case with the CARES Act. The Act will afford coverage to the following individuals who are available and able to work but are unemployed or partially unemployed as a result of Covid-19.

·      A person who is diagnosed with Covid-19, a person who is symptomatic and is seeking a diagnosis of the same, or a person who has been advised to self-isolate due to Covid-19 concerns.

·      A person who cannot work because someone in that person’s household has been diagnosed with Covid-19.

·      A person who cannot work because of caretaking responsibilities for a family member or household member diagnosed with Covid-19.

·      A person who is the primary caregiver for a child or other person in the household who cannot attend school or another facility as a result of Covid-19.

·      A person who cannot work because a quarantine imposed as a direct result of Covid-19 prohibits that person from reaching their place of employment.

·      A person who was scheduled to commence a particular job but cannot reach the job because of Covid-19.

·      A person who becomes a household’s major support provider because the head of household dies as a direct result of Covid-19.

·      A person who has to quit their job as a direct result of Covid-19; or,

·      A person who cannot work because their place of employment closed as a direct result of Covid-19.

If you fall within those categories, then you are eligible for unemployment assistance even if you are self-employed or you are an independent contractor. Please check back regularly, too, as the federal government reserved the right to add criteria to the list depending on the continuously evolving circumstances of the pandemic. To prove lost income, it will likely be necessary to show proof of existing contracts and/or expected workflow that became void or limited as a result of Covid-19. Please don’t hesitate to contact a lawyer for help and guidance on proving that to state officials.

The Stimulus Check

The headline of the CARES Act is the stimulus check. The federal government will issue a check to all taxpaying individuals and families.

Moreover, the CARES Act reduces a stimulus check of the taxpayer’s AGI (Adjusted Gross Income) for single individuals with no dependents who reported income between $75,000 to $150,000 by 5% of the AGI that is in excess of $75,000. For example, a person who reported AGI of $85,000 will receive $700. Here’s how that works: the difference is $10,000 from the $75,000 limit; 5% of $10,000 is $500; that amount subtracted from $1,200 totals $700.

A person who owes back taxes to the IRS will still receive the checks. The CARES Act instructs the IRS to distribute the refund checks as soon as possible; many experts estimate that it will take several weeks to process them. Direct deposit will be available for individuals who have a bank account on file with the IRS. 

Relief from Student Loan Repayments

Individuals with student loans held by the Department of Education may request a suspension of loan payments through September 2020 from their loan servicer. In addition, no interest will accrue on loans during this time period; however, it does not apply to privately held student loans. Please contact the loan holder, as opposed to the servicer, for help on the repayment of privately held student loans while impacts are felt due to the pandemic.

Relief from Mortgage Payments

A borrower who can prove that hardship caused by Covid-19 makes it necessary to delay mortgage payments can request forbearance on federally-backed mortgages; however, forbearance will not be available at this time to borrowers who still earn their regular wage and cannot demonstrate additional expense or economic impact. Lenders will not automatically enter homeowners into this forbearance program; a homeowner hoping for forbearance must contact their lender to utilize this option.

The Use of Retirement Funds

Ordinarily, there is a 10% early withdrawal penalty for early distributions from retirement funds. The Act waives those penalties for disbursements up to $100,000 as long as a person withdraws the funds for Covid-19 related purposes. The withdrawals will still be taxed under the Act; however, the IRS will spread taxation over the course of three years and/or permit the taxpayer to roll it back over during the course of those three years.

Small Business Relief

Small business companies continue to provide the backbone of the American economy and lifestyle. These are companies with fewer than 500 employees, and the ability for them to operate at this time is in serious jeopardy. The CARES Act allots funding for small businesses for up to 8 weeks of cash-flow aid for small business employers who maintain a payroll.

First of its kind: negligence action filed against cruise ship due to spread of novel coronavirus

A couple filed a lawsuit against Princess Cruise Lines Ltd. on Monday, March 9, 2020, alleging that the cruise line failed to take reasonable precautions to prevent the spread of the novel coronavirus (Covid-19) to passengers and crew members while onboard. It was the first of its kind when filed. 

The complaint alleges that Princess allowed two passengers it knew were symptomatic on the ship’s previous voyage to disembark when it docked in Oakland. Princess then permitted a new group of passengers to board later that day; after embarking, the ship then began its voyage to Hawaii as planned. The cruise line confirmed 21 people tested positive for Covid-19 while onboard, exposing the new group of passengers to the virus.

The incident alleged in the complaint came just weeks after the Princess Diamond ship was quarantined off the coast of Japan for two weeks when the novel coronavirus spread from 10 cases to 700. The complaint contends that Princess should have used the lessons it learned from that outbreak to implement more stringent precautions to prevent the spread of the virus on subsequent voyages.

It failed in that regard, according to the complaint. Instead, the plaintiffs argue that the cruise line valued profits over the health and safety of its passengers and the broader public. Such a judgment call does not comport with the level of precaution expected from a reasonable, prudent person who already knew of the danger existing on the ship. As such, it exposes Princess to negligence for damages proximately resulting from its failure to take such precautions.

As the novel coronavirus continues to spread nationwide, the definition of what constitutes a reasonable, prudent person will evolve with it. That is especially so when another has superior knowledge about the danger and fails to take corresponding action. A failure to take adequate precautions commensurate with the times can expose individuals, employers, and businesses to negligence should their lack of caution expose another to infection.

The law must be a refuge for those harmed and to hold others accountable for negligent disregarding a known risk to another’s health and safety.

The impact of the novel coronavirus (Covid-19) on the performance of contractual obligations

North Carolina law allows an unforeseeable supervening event to excuse a person’s performance on an already executed contract. A sudden pandemic like the outbreak of the novel coronavirus (Covid-19) is a supervening event that can call on these legal protections when performance is no longer possible, practical, or purposeful.

When performance is no longer possible: The doctrine of impossibility applies where a person cannot complete performance of a contract because an unforeseeable supervening event destroys the subject matter of the contract through no fault of the person who seeks release from the contract’s obligation to perform. Brenner v. School House, Ltd., 302 N.C. 207, 210, 274 S.E.2d 206, 209 (1981). See also Steamboat Co. v. Transportation Co., 166 N.C. 582, 82 S.E. 956 (1914) (applying doctrine to contract between ship owner and party leasing it for ferrying purposes when ship was destroyed by fire through no fault of parties); Barnes v. Ford Motor Co., 95 N.C. App. 367, 382 S.E.2d 842 (1989) (affirming trial court's instruction on doctrine of impossibility where subject matter of lease, a tractor, was destroyed). It’s possible that efforts to mitigate the spread of the coronavirus will destroy the subject matter of a contract such that the doctrine of impossibility might apply to a party who seeks release from performance.

When performance is no longer practical: The fallout from the spread of the coronavirus might also require a person to invoke the doctrine of impracticability as an excuse for nonperformance. Impracticability is a condition in which a task or duty could possibly be performed but only with extraordinary and unreasonable effort. When a duty under a contract to perform is accepted with a particular expectation for the difficulty and cost of performance, and then unforeseen circumstances increase the difficulty or cost to the point of impracticability, then even though the performance is still possible, the doctrine of impracticability will allow a party with the duty to perform to avoid it, subject to other circumstances or the language of the contract to the contrary. See N.C. Gen. Stat. § 25-2-615. In cooperation with public health officials, state and local governments have already put regulations in place that might make performance impractical. The ongoing spread portends the installation of more regulations before it ends. In such a case, this defense is only viable where the person who seeks release from an obligation does not assume the risk of regulation in the contract. Alamance County Bd. of Educ. v. Bobby Murray Chevrolet, Inc., 121 N.C. App. 222, 465 S.E.2d 306 (1996) (holding that where, defendant, by terms of the parties' agreement, accepted responsibility for keeping abreast of governmental regulations bearing upon the contract, the defense of impracticability will not excuse performance).

When performance is no longer purposeful: Lastly, an unforeseeable supervening event might frustrate the purpose of a contract such that it excuses performance. Frustration of purpose is similar but distinct from the doctrine of impossibility. “It more properly relates to the consideration for performance. Under it, performance remains possible, but is excused whenever a fortuitous event supervenes to cause a failure of the consideration or a practically total destruction of the expected value of the performance. The doctrine of commercial frustration is based upon the fundamental premise of giving relief in a situation where the parties could not reasonably have protected themselves by the terms of the contract against contingencies which later arose." Brenner, 302 N.C. at 211, 274 S.E.2d at 209 (quoting 17 Am. Jur. 2d Contracts § 401). Due to the uncharted waters in which many now tread, the doctrine of frustration of purpose will be an avenue for relief from otherwise enforceable obligations.

Start with the contract: Most commercial contracts contain a force majeure clause in which the parties allocate the risk of supervening events outside of their control, such as inclement weather, war, terrorism, government acts, and labor strikes, rendering performance either impossible, impracticable, or without intended purpose. The majority of force majeure clauses contemplate events and circumstances that would justify a court to excuse performance anyway, but it’s nevertheless a good place to start when reviewing options if performance becomes unreasonably burdensome, impractical, or impossible due to the spread of the novel coronavirus.

Remedies, Demands, and Negotiations: In order to mitigate the economic impact of the spread of the novel coronavirus, it will be necessary for parties at contractual arms-length to work together. Parties can amend the obligations owed under a contract, enter accord and satisfaction agreements, or terminate contracts through settlement. If that does not work, then individuals and businesses can avail their cause to the courts. However, the ability to exercise rational judgment and negotiate terms in light of the difficulty many now face is critical for local businesses and communities to sustain economic viability during the pandemic and once it ends.

No one is in this alone. Please don’t hesitate to reach out at 919-913-4701 or click Let’s Talk above should you need help with negotiating options now that the spread of the coronavirus continues to impact performances on contracts.

Face mask pricing reaches an unlawful fever pitch as coronavirus fear takes the public by storm

Last week, Reuters reported that profiteers were listing face masks for sale on Amazon at inflated prices amid rising concern over the spread of the coronavirus disease (Covid-19). Opportunistic retailers started to charge prices four to five times higher than the price for the same product weeks before the hysteria spread, according to WIRED’s story earlier that week.

That was until Amazon decided to remove or block tens of thousands of items on its marketplace for violating its internal rules that prohibit price gouging. Amazon’s Fair Pricing Policy forbids third-party sellers from creating a price mark for a product that is significantly higher than ones recently set for the same product. Its decision to remove or ban face masks priced significantly higher than in prior weeks, in addition to hand sanitizers and nonperishable foods falling in that same category, sent a message to sellers that the company intends to enforce its pricing policy to protect consumers and other third-party sellers.

But the magnitude of Amazon’s expansive marketplace portends a difficult task ahead for the company as news of the disease’s impact continues to make national headlines. That’s where state and federal regulators must step in to ensure the broader free market does not expose consumers to exorbitant pricing that plays on their fear for safety; and, many states already have laws in place to empower the attorneys general of each to enjoin such acts and to punish those in the wrong.

North Carolina is one of those states. N.C. Gen. Stat. § 75-38 prohibits excessive pricing during states of disaster, states of emergency, or abnormal market disruptions. The statute reads in full as follows.

(a)  Upon a triggering event, it is prohibited and shall be a violation of G.S. 75-1.1 for any person to sell or rent or offer to sell or rent any goods or services which are consumed or used as a direct result of an emergency or which are consumed or used to preserve, protect, or sustain life, health, safety, or economic well-being of persons or their property with the knowledge and intent to charge a price that is unreasonably excessive under the circumstances. This prohibition shall apply to all parties in the chain of distribution, including, but not limited to, a manufacturer, supplier, wholesaler, distributor, or retail seller of goods or services. This prohibition shall apply in the area where the state of disaster or emergency has been declared or the abnormal market disruption has been found.  

  In determining whether a price is unreasonably excessive, it shall be considered whether:  

(1)  The price charged by the seller is attributable to additional costs imposed by the seller's supplier or other costs of providing the good or service during the triggering event.  

(2)  The price charged by the seller exceeds the seller's average price in the preceding 60 days before the triggering event. If the seller did not sell or rent or offer to sell or rent the goods or service in question prior to the time of the triggering event, the price at which the goods or service was generally available in the trade area shall be used as a factor in determining if the seller is charging an unreasonably excessive price.  

(3)  The price charged by the seller is attributable to fluctuations in applicable commodity markets; fluctuations in applicable regional, national, or international market trends; or to reasonable expenses and charges for attendant business risk incurred in procuring or selling the goods or services.  

(b)  In the event the Attorney General investigates a complaint for a violation of this section and determines that the seller has not violated the provisions of this section and if the seller so requests, the Attorney General shall promptly issue a signed statement indicating that the Attorney General has not found a violation of this section.  

(c)  For the purposes of this section, the end of a triggering event is the earlier of 45 days after the triggering event occurs or the expiration or termination of the triggering event unless the prohibition is specifically extended by the Governor.  

(d)  A "triggering event" means the declaration of a state of emergency pursuant to Article 1A of Chapter 166A of the General Statutes or a finding of abnormal market disruption pursuant to G.S. 75-38(e).  

(e)  An "abnormal market disruption" means a significant disruption, whether actual or imminent, to the production, distribution, or sale of goods and services in North Carolina, which are consumed or used as a direct result of an emergency or used to preserve, protect, or sustain life, health, safety, or economic well-being of a person or his or her property. A significant disruption may result from a natural disaster, weather, acts of nature, strike, power or energy failures or shortages, civil disorder, war, terrorist attack, national or local emergency, or other extraordinary adverse circumstances. A significant market disruption can be found only if a declaration of a state of emergency, state of disaster, or similar declaration is made by the President of the United States or an issuance of Code Red/Severe Risk of Attack in the Homeland Security Advisory System is made by the Department of Homeland Security, whether or not such declaration or issuance applies to North Carolina. 

(f)  The existence of an abnormal market disruption shall be found and declared by the Governor pursuant to the definition in subsection (e) of this section. The duration of an abnormal market disruption shall be 45 days from the triggering event, but may be renewed by the Governor if the Governor finds and declares the disruption continues to affect the economic well-being of North Carolinians beyond the initial 45-day period.

Usually, the Attorney General invokes this law in North Carolina for weather-related emergencies, like a hurricane. But the risk of the coronavirus can become a triggering event under the law, and consumers should watch for sellers who attempt to charge substantially higher prices for goods or services consumed or used as a direct result of the panic associated with the spread of the coronavirus, such as face masks, hand sanitizers, and nonperishable foods.

Please use the Attorney General’s online form to report any such seller who might be in violation of North Carolina’s price gouging law. This will help protect consumers throughout the state and law-abiding businesses from unfair competition.

A product called Silver Solution will not cure the novel coronavirus, according to real life.

There is not a known cure for the novel coronavirus (Covid-19). As researchers hasten to learn more about the virus, that is one fact upon which all health experts and organizations around the globe agree. 

That is, except for Sherril Sellman, a so-called “natural health expert,” who falsely implied a liquid called Silver Solution eliminates and kills the virus. She made these provably false claims during an interview with Jim Bakker, whose televangelist production company sold the product for profit as part of its ministry in Missouri.

On March 6, 2020, the FDA and FTC warned Bakker not to sell products that claim to eliminate the novel coronavirus because, principally, no such product exists in the world. Bakker removed the product from his website on Wednesday; however, authorities fear it won’t be long before he reintroduces it to the public.

That’s why the State of Missouri filed a legal action to stop Bakker from selling the product while claiming it cures the novel coronavirus, citing violations of state law that prohibit false advertisements.

Unconscionable greed on the part of his ministry and heartbreaking gullibility on the part of his flock are topics beyond the scope of this blog post. Thankfully, its focus is on the law, and more precisely, the legal standard required for a court to enter a restraining order on a business that sells a product in the free market.

A temporary restraining order and/or preliminary injunction is a drastic pretrial measure when the petitioner’s forecasted need is immediate. Since urgency replaces the ordinary precautions due process provides a civil defendant, a court must find that (1) there is a substantial likelihood of success on the merits of the petitioner’s case and that (2) the petitioner will likely suffer irreparable loss unless the court intervenes with an injunction.

Warning letters from the FDA and FTC which point to violations of state and federal law predict a strong likelihood of success on the merits of the case. Bakker’s targeted consumers could also suffer irreparable loss should the court decline to enter the injunction. For one, there are side effects with the product itself, as it has the potential to turn a person’s skin bluish-gray (silver). But that’s not nearly all in context of the novel coronavirus. The product’s website particularly targeted older individuals who are susceptible to suffer more severe symptoms of the virus. The prospect of an older individual detrimentally relying on the product when sick instead of seeking out immediate medical attention could foreseeably result in serious illness or death for that individual.

Times like these tend to serve as an invitation for the crazies to emerge from the woodwork to take advantage of public fear and confusion. It’s good to know people in positions of power throughout the nation are stepping up to protect our wellbeing.

Litigation looms as crash scene photographs were reportedly disclosed against the wishes of Kobe Bryant's wife.

On the morning of January 26, 2020, a helicopter with nine people aboard, including Kobe Bryant and his daughter, crashed into the side of a mountain in Calabasas, California, killing them all. His wife, Vanessa Bryant, visited the responding substation for the Los Angeles County Sheriff’s Office in-person to request the office to designate the area a no-fly zone in the immediate aftermath of the crash. 

Her reason was simple. She wanted to exclude photographers from the scene in order to “protect the dignity of all victims, and their families,” according to her lawyer’s statement on February 29, 2020. Apparently, there is an industry for the photographs of celebrities, and morbidly, their deaths. In response, the sheriff’s office assured her it would take all measures available to protect the privacy of the victims and their families.

However, Sports Illustrated published an article recapping a couple reports from the Los Angeles Times and TMZ explaining that a bartender overheard a patron boasting of pictures from the scene of the accident while showing them to other patrons at the bar. According to those reports, the person with the photographs was purportedly a trainee of the sheriff’s office. Sports Illustrated confirmed that the bartender filed an online report after he witnessed the patron’s actions; knowledge of this report prompted Mrs. Bryant and her counsel to demand an internal investigation behind the alleged disclosure. It also portends the potential for legal action, including claims for invasion of privacy and the negligent infliction of emotional distress.

Although North Carolina law does not apply, our state courts recognize both as causes of action to bring against those responsible for the apparent disclosure. By way of illustration, this blog article will look at those torts and apply the bartender’s reported contentions against the patron to test their viability if North Carolina law governed the case. 

Invasion of Privacy by Intrusion into Seclusion: An individual can establish a case grounded in this theory where (1) the defendant intruded upon the privacy of that person; (2) the defendant acted with intent; i.e., knowingly, or with purpose, or with reckless indifference to consequence of the intrusion; and (3) the intrusion would highly offend a reasonable person under the same or similar circumstances. Keyzer v. Amerlink, Ltd., 173 N.C. App. 284, 618 S.E.2d 768 (2005), aff’d per curiam, 360 N.C. 397, 627 S.E.2d 462 (2006) (reasoning the kinds of intrusions that have been recognized under this tort include physically invading a person’s home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another).

Interestingly, North Carolina courts confirmed in 2011 that the accessing, viewing, disclosing, or publishing of autopsy photographs cannot be an intrusion because autopsy photographs, by statute, are readily accessible by any person for inspection and examination. Tillet v. Onslow Mem. Hosp., Inc., 715 S.E.2d 538, 541 (2011). However, the reported allegations of this case differ from that one in critical regard. Crash scene photographs conducted pursuant to law enforcement investigations are not readily accessible to the general public, if at all. That would seemingly justify a reason for Mrs. Bryant to expect privacy compared to the legally required public nature of an autopsy report. With that distinction in mind, Mrs. Bryant could likely satisfy the other elements should the information be true. The defendant apparently acted with purpose in order to brag and boast to other patrons at the bar. The disclosure of the photographs would also highly offend a reasonable person standing in Mrs. Bryant’s shoes, in addition to the families of the other victims of the crash. So, it appears as though she could establish intrusion of privacy as a cause of action to bring against the disclosing individual if North Carolina law applied.

The Negligent Infliction of Emotional Distress: A plaintiff can make a case for negligent infliction of emotional distress where (1) the defendant was negligent; (2) the plaintiff suffered severe emotional distress; and (3) defendant’s negligence proximately caused the plaintiff to suffer that severe emotional distress. Johnson v. Ruark Obstetrics and Gynecology Assoc., P.A., 327 N.C. 283, 395 S.E.2d 85 (1990). Here, reports suggest that the bar patron disclosed the crash scene photographs to other patrons to boast about his knowledge of the case; that negligently disregards the emotional wellbeing of Mrs. Bryant and the families of the victims of the crash. Presuming, for the sake of this analysis only, Mrs. Bryant could demonstrate she suffered severe emotional distress at the hands of that disclosure, then the negligent infliction of emotional distress could also be a viable option for relief if North Carolina law applied. 

The Intentional Infliction of Emotional Distress: Relatedly, a plaintiff can make a case for intentional infliction of emotional distress where (1) the defendant engaged in extreme and outrageous conduct --- the type that exceeds all bounds a decent society can tolerate; (2) that defendant’s conduct intended to cause, or was recklessly indifferent to the likelihood it would cause, plaintiff to suffer severe emotional distress; and (3) defendant’s conduct in fact caused plaintiff to suffer severe emotional distress. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

As mentioned in the previous section, this analysis presumes Mrs. Bryant suffered severe emotional distress due to the public disclosure of the photographs. The intentional element to this cause of action might be satisfied when there is actual knowledge of the potential for harm. That’s evident in this case. Mrs. Bryant visited the sheriff’s office in-person to request it to designate the area a no-fly zone to protect against the very harm the office was then allegedly responsible for causing when a trainee reportedly distributed pictures of the crash to patrons at a bar. If true, such a disclosure was recklessly indifferent to the likelihood it would impugn the dignity of Mrs. Bryant and the families of the victims. It’s possible, then, that Mrs. Bryant could establish intentional infliction of emotional distress as a cause of action, too, if North Carolina applied.

This is a pretend, surface-level analysis of how North Carolina law could provide Mrs. Bryant relief should the reports be true and if North Carolina law applied. It goes to show that the law can be a refuge for victims and their families when a person infringes on rights that are intangible and subject to elusive definitions, such as the right to privacy and the right to grieve the death of a loved one.

Airbnb, Vrbo, and other short-term rentals expose conflict between freedom of contract and free use of land.

In a little more than a decade, Airbnb and similarly situated short-term rental companies have revolutionized the travel industry through the establishment of user-friendly platforms that connect guests with hosts at locations across the globe. Guests can now customize their travel experience from their palms while property owners can open their doors to increase income with minimal risk of loss. 

That’s the bright side; at the same time, a darker one has grown by its side, according to a blog called Lodgify that posted accounts of horror stories from short-term rentals. Some guests turned an apartment into a junkie den; others attempted to recreate the Hangover movie set; and then others simply refused to leave in a brazen takeover of another’s home. However, these tragic tales of nightmares coming to life are extraordinarily rare, as the vast majority of users report positive and profitable experiences on the platforms consistent with their exponential rise in popularity.

Still, Airbnb and similar short-term rentals draw the ire of North Carolina community associations and neighborhoods across the state. Opponents argue the transient nature of the rental inhabitants in residential areas can lead to an increase in traffic congestion, parking shortages, safety concerns, noise nuisances, and unsightly landscaping troubles (read into that what you will). In response, homeowners have started to spearhead efforts to compel community associations to regulate the ability for other members to market property on Airbnb or other short-term rental platforms. 

But it’s not that easy. Some owners turned to existing declarations in their associations that prohibit the use of property for “business use.” Not so fast, the North Carolina Court of Appeals ruled in Russell v. Donaldson, 731 S.E.2d 535 (N.C. App. 2012), explaining instead that short-term rentals might be a business (i.e., meant solely to turn a profit), but that does not equate to “business use,” as long as the inhabitants use the property for residential purposes, such as sleeping, bathing, and cooking.

Other homeowners then focused on amending bylaws to declare regulations on the use of short-term rentals. That’s not the easiest of prospects either. Even if a tipping point of owners can convince an association to take action, North Carolina law mandates any restriction on alienation to conform to a reasonableness standard. Armstrong v. Ledges Homeowners Ass’n, Inc., 360 N.C. 547, 633 S.E.2d 78 (2006). There, the Court attempted to reconcile the conflict between the freedom of contract (bylaws and declarations) and the freedom to alienate property. On the one hand, it acknowledged that the primary purpose of a court when interpreting a covenant is to give effect to the original intent of the parties because they originate in contract --- but, on the other hand, courts must strictly construe those covenants in favor of the free use of land. Id. 

So, an amendment that restricts the free use of land must minimally be reasonable, taking into account the totality of the circumstances which frame the backdrop of a particular restriction or regulation. By way of example, it is probably not reasonable to prohibit short-term rentals in a place in North Carolina known for its tourism and lack of year-round residents, such as a beach-front community. 

In the end, reasonableness in novel areas of the law can often elude a clear definition. The issue of short-term rentals presents such novelty and pits owners against each other with a lot at stake for both sides. Meanwhile, it’s safe to say that Airbnb and similarly situated platforms are here to stay, and North Carolina courts will continue to navigate the choppy waters created when the most classic of free market principles collide.