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Law360 (May 25, 2021, 10:17 PM EDT ) A Southwest Airlines flight attendant who was infected with COVID-19 at a training session and gave it to her husband who later died has urged a Maryland federal judge to not toss the suit, saying the airline owed her husband a duty of care.
Carol Madden on Monday asked U.S. District Judge Stephanie A. Gallagher to deny a motion to dismiss filed by Southwest Airlines Co. in a wrongful death suit accusing the airline of failing to adhere to U.S. Occupational Safety and Health Administration recommendations regarding coronavirus safety measures at a mandatory training session.
Madden alleges Southwest failed to screen attendees for COVID-19, did not require masks, and held the training session in an unventilated and crowded room with attendees situated closer than six feet to others, which caused her to contract the virus and later infect her husband, William Madden.
Southwest contends Madden's suit fails because her husband was not its employee, therefore it owed him no duty of care. The airline argues that a duty of care only exists if a special relationship exists between Southwest and William Madden.
But Carol Madden claims that establishing a special relationship is not necessary for a legal duty to exist because Southwest's misconduct, rather than inaction, led to her husband's death.
"Did Southwest's conduct fall within the passive category so as to trigger the special relationship rule upon which Southwest relies?" Madden's brief stated. "The answer to this question is a definitive 'no.' Southwest's actions clearly constituted active malfeasance."
This means that under common law tort principles, foreseeability should be the standard applied by the court, according to Madden.
"Had Southwest taken the miniscule precautions that it advertised it took for its customer base — screening flight attendants, ensuring they wore the right mask and properly wore those masks, enforcing social distancing, sanitizing equipment, or expediting contact tracing — the harm would have been avoided," Madden said. "What happened to Mr. Madden was ... as tragic as it was avoidable."
An attorney for Madden, Dan Mastromarco, told Law360 on Tuesday he believes a legal duty was owed to William Madden.
"The company here was in the best position to rectify this and the employee was not in that position," Mastromarco said. "We know what could have been done to minimize exposure to COVID and all the company really had to do was to take a page out of what they were advertising for their customers; that would not have been asking a lot."
An attorney for Southwest did not immediately respond to a request for comment Tuesday.
Madden is represented by Dan R. Mastromarco of The Mastromarco Firm PLLP.
Southwest is represented by Kathryn A. Grace and William J. Katt of Wilson Elser Moskowitz Edelman & Dicker LLP.
The case is Estate of William Madden et al. v. Southwest Airlines Co., case number 1:21-cv-00672, in the U.S. District Court for the District of Maryland.
--Editing by Janice Carter Brown.
For a reprint of this article, please contact reprints@law360.com.
