TAKING CARE: HOW THE LAW CAN INCENTIVIZE PERSONAL RESPONSIBILITY IN AN AGE OF PANDEMICS
By: Nathan Webster, Volume 105 Managing Editor
As the United States confronts the Coronavirus pandemic, experts are devoting considerable thought to discerning the best method for overcoming the crisis. While most overt discussions center on the ways medical science can help treat the disease, policymakers are expending considerable time using their legal authority to incentivize citizens to behave responsibly and mitigate risk. This piece analyzes two tools the law uses to encourage personal responsibility: the reactive law of negligence, and the proactive police power to regulate health and welfare. While both doctrines have developed rich jurisprudence to combat public health crises, negligence’s requirements of duty and causation render it an inapposite for confronting the present crisis. Contrarily, the police power comes with jurisprudence that enables flexible action more effective in mitigating risk. This piece focuses on Minnesota law, though some analysis applies nation-wide.
I. Minnesota’s Law of Negligence is an Ineffective Tool in Incentivizing Responsible Behavior
The common law’s doctrine of negligence is a longstanding tool purporting to encourage risk-mitigating behavior. Under negligence law, defendants incur civil liability if (1) the defendant owes a duty of care, (2) the defendant breaches that duty, (3) an injury was sustained, and (4) the defendant’s breach of duty is the proximate cause of the injury. Typically, defendants incur a duty of care when they engage in risk-creating behavior. Upon incurring a duty of care, defendants breach that duty if they fail to exercise “the degree of care which a reasonably prudent person would exercise under the same or similar circumstances.” Defendants proximately cause an injury if defendants, in exercising reasonable care, ought to know their actions are likely to result in injury to others. In imposing liability for failure to exercise reasonable care, the common law strives to incentivize responsible behavior and minimize risk.
Minnesota courts have explicitly adapted the common law of negligence to prevent the spread of communicable diseases. In Skillings v. Allen (decided in 1919), the Minnesota Supreme Court held a physician liable for negligently advising a family that their child’s scarlet fever was not communicable. Similarly in Kowalske v. Armour & Co., the Minnesota Supreme Court applied negligence principals to the spread of brucellosis in deciding an issue of comparative negligence. Referencing both Skillings and Kowalske, a Minnesota court held in R.A.P. v. B.J.P. that “the preservation of health is a matter of great public importance” and that “legal duties must therefore be designed . . . to help prevent the spread of dangerous communicable disease.” In so doing, that court recognized the principal that “people who have dangerous contagious diseases have a duty to protect others who might be in danger of infection.” This holding represented a synthesis of cases from various states spanning more than a century. Though the case’s holding was limited to the facts of a specific disease, it drew upon a body of law addressing a variety of illnesses including smallpox, typhoid fever, scarlet fever, tuberculosis, and brucellosis.
Under this body of law, however, the duty to take reasonable care in preventing the spread of disease typically attaches when the defendant discovers a disease is present. For instance, in R.A.P. v. B.J.P., the court characterized the duty to avoid transmitting an infection as pertaining to defendants who know they are infected. Similarly, in finding a doctor liable for negligently contributing to the spread of scarlet fever, the duty to act with reasonable care attached after doctors concluded their patient had scarlet fever. Indeed, cases analyzing tuberculosis, and smallpox cough confirm the general principal that a defendant can only be expected to exercise reasonable care once they are aware they have the disease. Even courts willing to go so far as implying knowledge of infection only did so when the patient was aware of their symptoms and had previously been advised by a physician they might have a disease.
In the current pandemic, however, negligence’s requirement that patients have knowledge of their condition will be insufficient to incentivize good behavior. To begin, a chronic shortage of tests is forcing hospitals to limit testing to patients who are most at risk, leaving many other infected patients “unable to get diagnoses.” Though some of these patients might face liability if they had noticeable symptoms and their doctors advised them they might be infected, such liability would not encompass every person capable of spreading the disease. Studies suggest that a large proportion of those infected with the disease never develop symptoms. The highest estimate of asymptomatic sufferers approaches 50%. Such a high proportion of asymptomatic carriers would not threaten public health if they were not contagious. However, studies suggest that as many as 40% of new infections are being caused by carriers who are not suffering symptoms. Thus, the minimum requirement of symptoms before incurring a duty of care renders negligence law an ineffective tool in managing the risk of Coronavirus transmission.
What is more, even in those cases where patients infected with Coronavirus are aware of symptoms or received a positive test, negligence’s causation requirement could very well preclude liability. Negligence requires a causal link between plaintiff and defendant, a requirement that previous examples of liability had little problem fulfilling. For instance, the defendant in Hendricks did not even contest causation on appeal; unsurprising given that the disease in question (smallpox) typically spreads by “direct and fairly prolonged face-to-face contact.” Similarly, in Kowalske v. Armour & Co., a medical expert was able to say with confidence that there was “no evidence . . . that would support a finding that plaintiff contracted the disease (brucellosis) in any other manner” than through defendants’ negligence due to the limited way the disease could spread. For reasons not requiring explanation, establishing causation in cases concerning sexually transmitted diseases is even more straightforward.
Conversely, the line of causation in Coronavirus transmission is anything but clear. To begin, Coronavirus is more contagious than other common infectious diseases including MERS, the seasonal flu, and the Spanish Flu of 1918. Further, unlike smallpox, brucellosis, and sexually transmitted diseases, Coronavirus does not require close physical proximity to spread. Indeed, studies suggest that Coronavirus can infect people up to 26 feet away, and can linger in the air even after the infected person has left the vicinity. It should therefore be unsurprising that large proportions of confirmed cases result from “community spread” where healthcare providers are unable to confirm the source of a patient’s infection. Given such limitations, the law of negligence is a poor tool for incentivizing responsible behavior and minimizing the risk of Coronavirus transmission.
II. Conversely, Minnesota’s Police Power Has the Necessary Flexibility to Incentivize Good Behavior
Unlike the law of negligence, the police power of states is sufficiently flexible and broad to incentivize risk-mitigating behavior. Currently, most experts agree that imposing stay-at-home orders and other social distancing measures are the most effective way to reduce the severity of the Coronavirus outbreak. Some say they are the only way to reduce the magnitude of the virus’ impact. State executives have, for the most part, embraced experts’ thinking; forty-two states have implemented statewide stay-at-home orders (Minnesota included). However in doing so, states are making broad incursions into core individual rights such as the right to travel, the right to assemble, and the right to freely associate. Unsurprisingly, some question whether such incursions into individual rights are constitutional. Long-established case law suggests that they are.
Supreme Court jurisprudence has long-recognized that the authority of states to enact public health laws limiting individual liberty is “beyond question.” In a seminal case—Jacobson v. Massachusetts—Massachusetts passed a law requiring universal vaccination to combat the spread of smallpox, then present throughout the world. The plaintiff insisted that a law requiring compulsory vaccination was “unreasonable, arbitrary and oppressive,” thereby violating the rights vested in every citizen. The court disagreed, asserting that “enjoyment of all rights are subject to such reasonable conditions as may be deemed . . . essential to the safety, health, peace, good order and morals of the community.” While the court conceded that restrictions might be unconstitutional if they have no “real or substantial” relation to the protection of “the public health, the public morals or the public safety,” the court ultimately held that the provision requiring vaccination was reasonably related to the protection of public health. Further, the courts have not limited this power to legislatures; and permit political subdivisions and individual officials to exercise discretion in implementing policy, thus permitting flexible implementation. In subsequent years, courts have relied on Jacobson to validate laws requiring mandatory quarantining of ships, quarantining of possible disease carriers unable to prove vaccination, and the requirement of vaccination to attend public school, among others.
Of course, such powers are not completely uninhibited. For instance, if Congress legislates to combat a public health crisis, the Supreme Court acknowledges that “all state laws on the subject will be abrogated, at least so far as the two are inconsistent.” Other Courts have invalidated public heath regulations when the regulations proved to be arbitrary or unreasonable. Courts have also entertained theories of equal protection in challenges to public health regulation. However, given the instant facts surrounding the Coronavirus pandemic, none of these limitations are likely to carry much water.
To begin, though Minnesota’s stay-at home order is admittedly an incursion into personal liberty, it likely has a sufficiently reasonable relationship to valid public health goals, and therefore satisfies Jacobson. Coronavirus is widespread in the state, and experts agree that orders to stay home are the most effective, if not the only way to avert a public health catastrophe. Such popular consensus on how to mitigate the spread of infection is precisely the kind of evidence the Supreme Court found so persuasive in Jacobson. Though some argue that there are less invasive ways of protecting public health, Jacobson does not require that health policy be universally accepted in order to be valid. Further, the federal government has not passed legislation that would preempt Minnesota’s exercise of the police power, and case law suggests that federal courts are unlikely to declare the orders irrational and arbitrary unless there is evidence that the public was not currently facing exposure. The legislature’s broad assignation of powers to the governor likely survives any delegation challenges, and strict scrutiny arguments that the order is not the “least intrusive” method rest on a dubious jurisprudential foundation. Finally, the policy does not resemble situations where courts have contemplated equal protection concerns. As such, stay-at-home orders likely pass constitutional muster.
Indeed, the police power’s ability to incentivize good behavior is evidenced by precipitous reductions in individual movement. Many areas of the United States that implemented stay-at-home orders are already seeing reduced growth rates. While such policies ought to be revisited, and policy-makers should be wary of inflicting unnecessary economic hardship, stay-at-home orders are incentivizing responsible behavior and buying the healthcare system time. In doing so, they enable states to achieve a common goal: overcoming the virus. This country’s capacity to overcome diseases of ages past suggests it is a goal we are capable of achieving.
 Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).
 See Domagala v. Rolland, 805 N.W.2d 14, 23 (Minn. 2011) (finding that a defendant assumes a duty of care when “the defendant’s own conduct creates a foreseeable risk of injury to a foreseeable plaintiff.”).
 Minneapolis Emps. Ret. Fund v. Allison-Williams Co., 519 N.W.2d 176, 182 (Minn. 1994).
 Lubbers, 539 N.W.2d at 401 (Minn. 1995) (citing Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992)).
 Nadia N. Sawicki, Choosing Medical Malpractice, 93 Wash. L. Rev. 891, 959 (2018) (describing tort law as being “driven by the desire to incentivize good behavior and deter people from taking unreasonable risks that impact third parties.”).
 173 N.W. 663, 664 (Minn. 1919).
 220 N.W.2d 268 (Minn. 1974).
 428 N.W.2d 103, 106 (Minn. Ct. App. 1988) (quoting Skillings, 173 N.W. at 664).
 Id. at 107.
 Id. (identifying the cases underlying the duty to prevent the spread of communicable disease).
 Gilbert v. Hoffman, 23 N.W. 632 (Iowa 1885); Hendricks v. Butcher, 129 S.W. 431 (Mo. 1910).
 Kliegel v. Aitken, 69 N.W. 67, 68 (Wis. 1896).
 Skillings v. Allen, 173 N.W. 663 (Minn. 1919).
 Earle v. Kuklo, 98 A.2d 107 (Super. Ct. App. Div. 1953).
 Kowalske v. Armour & Co., 220 N.W.2d 268 (Minn. 1974).
 428 N.W.2d 103, 108 (Minn. Ct. App. 1988).
 Skillings, 173 N.W. at 664 (Minn. 1919).
 See. Hendricks v. Butcher, 129 S.W. 431, 432 (Mo. 1910) (holding that “if defendant knew that he was afflicted with smallpox it then became and was his duty to keep away from other persons, or should other persons approach him to notify them of the fact so that they might protect themselves.”); Earle, 98 A.2d at 109 (Super. Ct. App. Div. 1953) (holding that “[i]n order to show negligence in exposing another to a contagious or infectious disease, it must be proved that the defendant knew of the presence of the disease.”).
 M.M.D. v. B.L.G., 467 N.W.2d 645, 647 (Minn. Ct. App. 1991) (finding that a patient who had symptoms of a disease, had previously communicated concerns about the disease, and had been warned by his doctor that he might have the disease, had a reasonable duty to inform others who he was at risk of infecting).
 Megan Twohey, Steve Eder & Marc Stein, Need a Coronavirus Test? Being Rich and Famous May Help, N.Y. Times (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/us/coronavirus-testing-elite.html [https://perma.cc/NX2R-VULE]; see also Sheila Kaplan & Katie Thomas, Despite Promises, Testing Delays Leave Americans ‘Flying Blind,’ N.Y. Times (Apr. 6, 2020), https://www.nytimes.com/2020/04/06/health/coronavirus-testing-us.html [https://perma.cc/L38J-QTC2] (reporting a chronic testing shortage that limits testing confirmation to only the most vulnerable patients).
 See M.M.D., 476, N.W.2d at 647 (finding constructive knowledge of a disease where the patient noticed symptoms and received warnings from his doctor).
 Sam Whitehead & Carrie Feibel, CDC Director on Models for The Months to Come: ‘This Virus is Going to Be with Us,’ NPR: Shots Health Blog (Mar. 31, 2020), https://www.npr.org/sections/health-shots/2020/03/31/824155179/cdc-director-on-models-for-the-months-to-come-this-virus-is-going-to-be-with-us [https://perma.cc/ND7N-TWEK] (quoting the director of the Centers for Disease Control and Prevention as saying that 25% of those infected are asymptomatic).
 Tara John, Iceland’s Lab’s Testing Suggests 50% of Coronavirus Cases Have No Symptoms, CNN (updated Apr. 3, 2020), https://www.cnn.com/2020/04/01/europe/iceland-testing-coronavirus-intl/index.html [https://perma.cc/GW7Q-3B2D].
 See Apoora Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html [https://perma.cc/GP5X-LZ94] (reporting on a team in Hong Kong that found that “20 to 40 percent of transmissions in China occurred before symptoms appeared” and that “asking only unwell people to stay home is unlikely to be enough.”).
 Hendricks v. Butcher, 129 S.W. 431, 432 (Mo. 1910) (reporting that defendant premised his appeal on an argument that he had no duty, rather than lack of causation).
 How Does Smallpox Spread?, Centers for Disease Control and Prevention, https://www.cdc.gov/smallpox/transmission/index.html [https://perma.cc/X4NW-9VW9] (last reviewed Jun. 7, 2016).
 220 N.W.2d 268, 271 (Minn. 1974).
 See e.g. Milbank Ins. Co. v. B.L.G., 484 N.W.2d 52, 55 (Minn. Ct. App. 1992).
 Berkeley Lovelace Jr., The Coronavirus May be Deadlier than the 1918 Flu: Here’s How It Stacks Up to Other Pandemics, Health and Science, CNBC (Mar. 26, 2020), https://www.cnbc.com/2020/03/26/coronavirus-may-be-deadlier-than-1918-flu-heres-how-it-stacks-up-to-other-pandemics.html [https://perma.cc/TUW3-2HLK] (reporting that Coronavirus’ R naught (contagiousness indicator) is 2.2 compared to 1.3 for the seasonal flu, 1.5 for H1N1, 1.7 for the 1957 flu pandemic, 1.8 for the 1918 flu pandemic, and 0.5 for MERS).
 Apoora, supra note 24.
 See Lisa Lockerd Maragakis, Coronavirus Disease 2019 vs. the Flu, johns hopkins medicine (last visited Apr. 1, 2020), https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-disease-2019-vs-the-flu [https://perma.cc/2RPP-BSSZ].
 See e.g. Matt DeLong, C.J. Sinner & Michael Corey, Tracking Coronavirus Cases in Minnesota, Star Trib. (last updated Apr. 10, 2020, 12:13 PM), https://www.startribune.com/coronavirus-covid-19-minnesota-tracker-map-county-data/568712601/ [https://perma.cc/SQ7W-WM8J] (stating that healthcare officials in Minnesota “believe the virus is circulating statewide and all counties should be presumed to have instances of community transmission.”).
 See e.g. Max Brooks, Opinion, Social Distancing May Be Our Best Weapon to Fight the Coronavirus, N.Y. Times (Mar. 11, 2020), https://www.nytimes.com/2020/03/11/opinion/coronavirus-prevention-distancing.html?searchResultPosition=27 [https://perma.cc/3DMZ-CCMQ]; Social Distancing, Quarantine, and Isolation, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html [https://perma.cc/Y88N-29L2] (last reviewed Apr. 4, 2020) (describing social distancing as “the best way to reduce the spread of coronavirus disease”).
 Donald G. McNiel Jr., The Virus Can Be Stopped, but Only with Harsh Steps, Experts Say, N.Y. Times (Mar. 22, 2020), https://www.nytimes.com/2020/03/22/health/coronavirus-restrictions-us.html [https://perma.cc/55FD-HDP3].
 Sarah Mervosh, Denise Lu & Vanessa Swales, See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times (updated Apr. 7, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html [https://perma.cc/U7S7-LWNN].
 See Saenz v. Roe, 526 U.S. 489, 498 (1999) holding that though “[t]he word ‘travel’ is not found in the text of the Constitution . . . the ‘constitutional right to travel from one State to another’ is firmly embedded” in constitutional jurisprudence).
 See United States v. Cruikshank, 92 U.S. 542, 552 (1875) (holding in dicta that the first amendment “assumes the existence of the right of the people to assemble for lawful purposes.”).
 See NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958) (holding that the freedom to associate is guaranteed by the 14th amendment).
 See e.g. Harry Litman, Opinion, Here’s What’s Wrong with Gov. Newsom’s Stay-at-Home Order: It’s a Legal Mess, L.A. Times (Mar. 25, 2020), https://www.latimes.com/opinion/story/2020-03-25/gavin-newsom-stay-at-home-order-quarantine-coronavirus-covid-19 [https://perma.cc/L8N5-5NCK] (arguing that Governor Newsom’s stay-at-home order fails strict scrutiny inasmuch as it is not the least restrictive method of serving the government’s compelling interest in stopping the virus); Ian Millhiser, Texas Pastors Demand a “Religious Liberty” Exemption to Coronavirus Stay-at-Home Orders, (Apr. 1, 2020), https://www.vox.com/2020/4/1/21201104/texas-pastors-religious-liberty-coronavirus-stay-at-home-hotze [https://perma.cc/JHZ7-HBD3] (reporting a prospective suit by Texas pastors that argues stay-at-home orders unconstitutionally inhibit freedom of worship).
 Compagnie Francaise de Navigation a Vapeur v. La. State Bd. Of Health, 186 U.S. 380 (1902) (upholding a mandatory quarantine for ships carrying infectious diseases).
 Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).
 Id. at 26.
 Id. at 35.
 Id. at 39.
 See e.g. Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 366 (1910).
 N.Y. ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 560 (1905) (holding that the Supreme Court will not interfere when states give local officials broad authority to implement policy).
 Compagnie Francaise De Navigation A Vapeur v. La. State Bd. of Health, 186 U.S. 380, 387 (1902).
 U.S. ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963).
 Zucht v. King, 260 U.S. 174, 177 (1922).
 See e.g. Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1993) (permitting person suspected of having venereal disease to be detained without bail).
 Compagnie Francaise, 186 U.S. at 388 (1902).
 See e.g. Jew Ho v. Williamson, 103 F.10, 23 (C.C.D. Cal. 1900).
 See e.g. Adams v. Milwaukee, 228 U.S. 572 (1913) (holding that an ordinance requiring disease testing of milk from outside Milwaukee would only violate equal protection principals if out-of-state milk was denied entry after testing negative and in-state milk was permitted entry after a negative test).
 DeLong, Sinner & Corey, supra note 33.
 See e.g. Brooks, supra note 34.
 McNiel Jr., supra note 35.
 197 U.S. 11, 35 (1905) (asserting that “the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.”).
 See e.g. Tim Pugmire, Legislative Leaders React to Walz “Stay-at-Home” Order, MPRNEWS (Mar. 25, 2020), https://www.mprnews.org/story/2020/03/25/legislative-leaders-react-to-walz-stay-at-home-order [https://perma.cc/77PF-V52B] (quoting Minnesota Senate majority leader Paul Gazelka as having “grave concerns” about the stay-at-home order).
 197 U.S. at 35 (asserting that “[t]he fact that the belief (on how to combat pandemics) is not universal is not controlling . . . .”).
 See Jonathan Martin & Alexander Burns, Once Political B-Listers, Governors Lead Nation’s Coronavirus Response, N.Y. Times (Mar. 17, 2020), https://www.nytimes.com/2020/03/17/us/politics/governors-coronavirus-trump.html [https://perma.cc/Z2J9-DCSQ] (reporting on the fact that the federal government has taken a support role in mandating self-isolation).
 Hickox v. Christie, 205 F. Supp. 3d 579, 593 (D.N.J. 2016) (opining in dicta that “application of the quarantine laws to a person (or, more commonly, vast numbers of persons) who had no exposure to the disease at all” would be arbitrary and unreasonable).
 See e.g. Minn. Stat. § 12.21 (2020) (cited by Governor Walz’ order, giving the governor the authority to make orders necessary to fulfill the provisions of the emergency powers statute).
 See Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 366 (1910) (permitting states to delegate implementation of regulations to municipal authorities); N.Y. ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 560 (1905) (holding that the Supreme Court will not interfere when states give local officials broad authority to implement policy). State constitutional delegation issues are unlikely to be an issue inasmuch as Minnesota has fairly permissive jurisprudence as far as legislative delegation is concerned. See Minn. Energy & Econ. Dev. Auth. v. Printy, 351 N.W.2d 319, 350 (Minn. 1984) (characterizing Minnesota’s delegation jurisprudence as consistently endorsing the principal that “adequate statutory standards [governing delegation of legislative power] may be laid down in broad and general terms.”).
 Litman, supra note 40 (arguing that Governor Newsom’s stay-at-home order fails strict scrutiny inasmuch as it is not the least restrictive method of serving the government’s compelling interest in stopping the virus).
 See e.g. In re Abbott, No. 20-50264, 2020 U.S. App. LEXIS 10893, at **16-17 (5th Cir. Apr. 7, 2020) (citing Jacobson to uphold the cessation of abortion in the state during the current crisis without even mentioning strict scrutiny analysis). See also Allan Jacobs, Is State Power to Protect Health Compatible with Substantive Due Process Rights?, 20 Ann. Health L. 113, 116 (2011) (arguing that in public health cases, courts typically adopt a less demanding standard than strict scrutiny and do not require the narrowest possible remedy).
 Here, the regulation applies to every Minnesotan whether or not they are infected. The order does not, as contemplated in Adams v. Milwaukee apply differently to two classes of people when both classes tested negative. 228 U.S. 572 (1913).
 Geoffrey A. Fowler, Smartphone Data Reveal Which Americans are Social Distancing (and not), Wash. Post. (Mar. 24, 2020) https://www.washingtonpost.com/technology/2020/03/24/social-distancing-maps-cellphone-location/ [https://perma.cc/H8QL-NRB2].
 Jay Boice & Anna Wiederkehr, Experts Think We’re Flattening the Coronavirus Curve, but Hospitalizations Haven’t Peaked Yet, FiveThirtyEight (Apr. 9, 2020), https://fivethirtyeight.com/features/experts-think-were-flattening-the-coronavirus-curve-but-hospitalizations-havent-peaked-yet/ [https://perma.cc/893Z-EFXL] (reporting evidence that some states are flattening the curve and that the spread of Coronavirus is likely to slow down in coming weeks).
 See supra notes 10–15 and accompanying text discussing cases that memorialize an array of formerly devastating diseases, none of which pose as substantial a threat today.