Ex-Walmart Worker's Death Spurs 'First' Ill. COVID Death Suit

By Vin Gurrieri
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Law360 (April 6, 2020, 10:37 PM EDT) -- Lax safety and cleanliness standards at an Illinois Walmart store caused a worker to become fatally infected by the novel coronavirus, according to what the lawyer for the deceased worker's family called the "first known COVID-19 wrongful death lawsuit" filed Monday in the Land of Lincoln.

The estate of Wando Evans, who worked as an associate at a Walmart store in Evergreen Park for more than a decade, claimed in a state court case filed Monday that he and other workers contracted the disease while working at the store, and that the retailer committed "willful and wanton misconduct" by not using workplace safety measures that had been recommended by public health officials to curb the spread of the disease.

Evans died on March 25 of complications caused by COVID-19, the disease caused by the novel coronavirus. He had been sent home from work two days earlier, according to his suit, which was filed in Cook County Circuit Court.

A second worker at the Evergreen Park store died from COVID-19 several days after Evans, and other workers at the store had exhibited symptoms of the disease around the same time, according to the suit, which says that Walmart didn't do anything to bar symptomatic workers from the store until after Evans died.

"At all relevant times, defendant owed the decedent a duty to exercise reasonable care in keeping the store in a safe and healthy environment and, in particular, to protect employees, customers and other individuals within the store from contracting COVID-19 when it knew or should have known that individuals at the store were at a very high risk of infection and exposure due to the high volume of individuals present at and circulating throughout the store on a daily basis," the complaint said.

Evans' estate claimed that the store knew before either worker died that there were employees who were showing symptoms of COVID-19, but it failed to take preventive measures that the Centers for Disease Control and the Occupational Safety and Health Administration had recommended.

Those included the store's management not cleaning and sterilizing the location to keep workers and shoppers from being infected, not implementing social distancing guidelines that public health officials had called for, and not providing workers with personal protective equipment like masks, gloves and antibacterial soap.

Moreover, Evans' estate said that Walmart didn't warn workers that their colleagues had symptoms of COVID-19 and "otherwise ignored other employees at the store who communicated to management" that they were showing signs of having the disease.

Evans' estate also faulted the store for not shutting down when it "knew or should have known" that people in the facility were symptomatic and not training workers in COVID-19 mitigation procedures.

"As a direct and proximate cause of the above acts and/or omissions of negligence, the decedent was infected by COVID-19 and ultimately died due to complications of COVID-19," the complaint said.

Besides Walmart, the seven-count suit named as a defendant J2M-Evergreen LLC, which owned and managed the retail center where Evans' store was located.

Evans' counsel Tony Kalogerakos of Injury Lawyers of Illinois LLC said in a press release that the case is the "first known COVID-19 wrongful death lawsuit" that has been filed in Illinois. He also said that the firm has asked OSHA to investigate Walmart's actions.

"The Centers for Disease Control has designated Walmart stores as 'high-volume retailers,' making them responsible for taking additional precautions to protect employees and customers from the spread of COVID-19," Kalogerakos said. "At a minimum, they were responsible for notifying store workers that a colleague had symptoms consistent with COVID-19, providing their employees personal protective equipment such as masks and latex gloves, implementing social distancing, and sending exposed employees' home until cleared by medical professionals."

In a statement to Law360 Monday, Walmart spokesman Randy Hargrove said that the company is "heartbroken" that two of its Evergreen Park store workers died from COVID-19 and that "we are mourning along with their families."

"We take this issue seriously and will respond with the court once we have been served with the complaint," the company said.

Walmart noted in its statement that neither worker has been at the Evergreen Park store for more than a week and that the company "took action to reinforce our cleaning and sanitizing measures" at the location that included "a deep-cleaning of key areas."

Hargrove also said that the Evergreen Park store "passed a third-party safety and environmental compliance assessment as well as a health department inspection" within the past week, and that Walmart "as an extra precaution ... brought in an outside company to further clean and sanitize all high-touch surfaces in the store." like carts, registers, bathrooms and areas of the store where food is located.

"Additionally, we have taken steps across the country to protect our associates and customers, including additional cleaning measures, installing sneeze guards at registers, placing social distancing decals on the floors and limiting the number of customers in a store at a given time," Hargrove added. "We'll continue to take steps, such as screening associates, conducting temperature checks, and providing masks and gloves for associates that want to use them."

Evans' estate is represented by Tony S. Kalogerakos of Injury Lawyers of Illinois LLC.

Counsel information for Walmart wasn't immediately available.

The case is Toney Evans, Special Administrator of the Estate of Wando Evans v. Walmart Inc. et al., case number 2020L003938, in the Circuit Court of Cook County.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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