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Are there any tested (i.e., upheld by previous court decisions) avenues for a person (or class of persons) to seek compensation or redress in the United States for having acquired a disease when they have behaved in a way that is recommended by health officials and others have not? The kind of examples I have in mind include the following.

  1. I have a regular viral test for COVID-19. I only mix with other people if I tested negative on my last test. I wear a mask when I go out. I go to my regular church where a large number of other people are not wearing masks and apparently do not get themselves tested. I acquire coronavirus and suffer long term morbidity as a consequence.

  2. My child has an weak immune response and despite being vaccinated against measles, does not produce a useful antibody response. She acquires measles from an unvaccinnated child at school during that child's asymptomatic infectious period.

  3. I lose money because I cannot work as a waitress at my regular diner because I have a common rhinovirus and I'm sneezing and coughing a lot. I almost certainly got the virus from another worker who didn't stay home when she was coughing and sneezing.

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    In example 1, the subject has not behaved in a way that is recommended by health officials. They attended a large gathering, indoors no less, where others were not masked. – Damila Dec 6 '20 at 2:46
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    Short answer is that there is a body of case law on the subject (COVID-19 if not the first infectious disease to arise since people learned how diseases were transmitted), but I don't know how it comes out and I think that the law varies by U.S. state. I know that there are a number of STD cases out there. – ohwilleke Dec 8 '20 at 0:43
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    @ohwilleke I was motivated to ask the question having read an article in American Scientist about a very different problem but with a somewhat similarly focused (idea for a?) solution. The article, was title "How Property Rights Can Fight Pollution: Toxic contamination is a form of trespass. Restoring traditional legal protections could improve public health and hold industry accountable", and appeared in American Scientist, Vol 108, Issue 2, pages 92-97. ( americanscientist.org/magazine/issues/2020/march-april ) – user02814 Dec 8 '20 at 3:57
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    I suspect that a big problem (which also explains why STD cases are such a big share of the total) is that proof of causation is hard unless the disease is rare enough to make high quality and accurate tracking possible, and that in an out of control pandemic, this isn't possible. – ohwilleke Dec 9 '20 at 3:52
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    "I have a regular viral test for COVID-19. I only mix with other people if I tested negative on my last test" - to use someone-elses quote here, relying on a negative Covid-19 test so you can go to gatherings is like relying on a negative pregnancy test as birth control. You were negative at that moment in time, you could have contracted Covid-19 the moment after the swab was taken. – Moo Jan 4 at 21:33
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In case number 1 there is no clear target for liability. Any of "a large number of other people" could be responsible. Moreover, it is possible that some other person met casually, say on the street, is responsible -- transmission can and does occur even through masks. I don't see the kind of evidence here needed for a suit.

In case number 2 the evidence is better, but I am still inclined to doubt that a suit would be viable. One would have to show negligence on the part of the unvaccinnated child or that child's parents or guardian. If vaccines are not mandated for measles that might be hard, and that child might have some valid reason for not using one.

In case 3 I doubt that the losses would be enough to make a suit worthwhile, since I think expert testimony would be needed to establish a valid cause of action in such a case.

I have read of people who were infected with a sexually transmitted disease by a lover (who knew that he or she was infected and did not inform a partner) bringing suit successfully. I don't have any case citations at hand.

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