Zika Could Open Up a New Frontier In Workplace Injury Litigation, Just Probably Not in Texas

Still, you should stay away from the mosquitoes.
Still, you should stay away from the mosquitoes.

Eventually, according people who predict this sort of thing, Dallas County is going to get its very own homegrown case of the birth-defect causing Zika virus. A mosquito carrying the disease is going to bite someone here, and we're going to have a, hopefully small, local outbreak. Dallas County Health and Human Services is ready to fight any local outbreak with spraying, aerial and otherwise, and the city has signed off on the county doing whatever it needs to do.

Another group is ready, too, the lawyers. Some see the potential for Zika to set new precedent in workplace injury litigation. Others say that, in Texas at least, personal injury lawyers might be barking up the wrong tree.

The basic idea is this: As an employee, if you're injured on the job and your employer subscribes to workplace compensation insurance, you're basically limited to standard workplace compensation. Your employer is required to pay your medical bills and loss if you're hurt while working. In return, you give up the right to sue your employer for negligence that may or may not have led to your injury. Zika, according to Robert Ryan, a California personal injury attorney, is unique because of the potential injury it can cause to a fetus.

"Suppose a woman is pregnant and she contracts Zika in a workplace environment," Ryan says. "Now, she would typically be covered under workers' compensation because it would be considered an industrial injury or illness, but what about the baby who is born with microcephely, that horrible birth defect, now that baby might not be restricted to a worker compensation claim because he's not really a worker."

The what-ifs could back up one step further as well, Ryan says, because Zika is a sexually transmitted disease. If a male groundskeeper at a golf course, for instance, were bitten by a Zika carrying mosquito and that worker then infected a sexual partner with the disease, the employer could be held liable outside of workers' compensation law, if an attorney could get a judge to buy into his or her argument. Chad Ruback, a Dallas appellate lawyer, says getting a Texas judge to assign liability for a fetus or sexual partner of a worker who might have contracted Zika on the job to an employer would be an exceedingly tough sell. 

"California has a reputation for having judges who are willing to construe the law liberally to benefit plaintiffs. It is highly unlikely that an employer — particularly an employer which subscribes to workers comp insurance — would have liability for injury to a fetus based on an employee being stung by a mosquito at work," Ruback says. "Texas’ judicial system is much less friendly to plaintiffs than California’s. Even if a plaintiff’s lawyer could convince a Texas trial court judge to sign a judgment based on such a novel theory of recovery, I am doubtful the judgment would survive review by the Texas appellate courts."

Even if a judge were inclined to side with a Zika plaintiff, Ruback says, proving liability itself would be extremely challenging. A plaintiff would have to prove that he or she was stung by a mosquito on the job, rather than while they were at home.

So far in 2016, 33 Dallas County residents have tested positive for the Zika virus. All but one of them contracted the virus in a foreign country experiencing a Zika outbreak. One man got the virus after having sex with his partner, who'd recently traveled to Venezuela. Zach Thompson, the director of Dallas County Health and Human Services, has described local Zika transmission as being a matter of "when and not if."

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