Saturday, May 16, 2020

Granting blanket immunity related to COVID-19 injuries is a bad idea

As  I am sure you know by now, some business have been cleared to open for business in many states and this has generated some debate as to whether those businesses should be granted immunity from possible liability if their employees or customers contract COVID-19 as a result.  The issue as to whether an employer is liable to an employee relates to the state's workers compensation system, so I will not comment on that.  I am more interested in the possibility of tort liability to customers.

On this issue, I agree with Professor Timothy D. Lytton, of Law (Georgia State University) who has authored two very good and short articles on the matter.  See here and here.

The rhetoric often used by organizations like the Chamber of Commerce to claim protection from "frivolous lawsuits" is not new and it has been used for a long time in attempts to limit, or even eliminate, the rights of injured parties to seek recovery for their injuries.  Like all so-called "tort reform" efforts, it is all part of an effort to make it more difficult, if not impossible, for injured parties to get recovery, or, if they can get recovery to limit the amount of recovery they can get.

Unfortunately, calls for such limits have already been heeded in New York, where the legislature enacted broad immunity for health care workers from medical malpractice claims during the COVID-19 crisis; and Senate Majority Leader Mitch McConnell has threatened that he will not allow another coronavirus bailout bill to pass the Senate unless it includes sweeping immunity from liability for businesses.  (For a comment on the issues before the Senate go here.)

Granting such immunity from civil liability is bad public policy and legislators should reject the idea.

I just recently read a report that some businesses in Wisconsin are refusing service to people who wear masks. Yes, you read that right.  Some business have signs that say masks are not allowed; others have threatened to call the police claiming the masked individuals are there to commit a robbery.

This attitude, fueled by ignorance and the insane idea that not wearing a mask is somehow an expression of resistance to government intrusion, is, in fact, purposely and with knowledge creating the possibility that customers will be exposed to a deadly virus.  Why should a business owner who purposely endangers the health of its customers be granted immunity?

The most basic principle upon which all of tort law is based is the notion of deterrence.  As we all know, the prospect of possible liability for our conduct is an incentive for us to act in ways that do not create unreasonable risks to others.

Why would it make sense to abandon this universally accepted principle now, at a time when it is clear that the conduct of businesses open to the public can create such high level of risks?  Add to that the fact that some of the more simple precautions that can be taken are simple and inexpensive and Learned Hand would be calling from his grave to remind us why it is that tort law works for the betterment of society.

As Prof. Lytton explains,
The prospect of lawsuits against businesses that fail to take proper precautions to prevent the spread of COVID-19 is likely to focus business owners’ attention on exercising reasonable care to avoid liability for negligence. The various considerations that define the legal standard of reasonable care—cost-benefit analysis, emerging industry customs, public safety regulations, and common sense—applied in specific contexts by the people who know them best may make the reopening process more reflective and rational than if businesses rely solely on the changing or conflicting policy statements released by public officials.
In addition, as has been proven time and time again before the days of the pandemic in the debate related to tort reform, the fear that liability exposure will lead to a flood of litigation is unwarranted. The civil liability system places considerable obstacles on the prospect of frivolous litigation.

In addition, defendants will always have available defenses that can result in a reduction in the level of possible liability, or in the complete dismissal of the claims, including comparative negligence, assumption of the risk and, in a small handful of states, contributory negligence.

In the end, business owners should be encouraged to take reasonable precautions to protect their customers and their workers.   Liability insurers can play a part by making sure their customers (the business owners) know the need to take those precautions.

In contrast, granting blanket immunity to businesses will encourage them to be less mindful of taking reasonable precautions to prevent COVID-19 transmission as they face growing financial pressure to reopen.  Customers, workers, everyone who comes in contact with them, the economic system, and society in general will suffer as a result.

In response to arguments like the ones I have expressed here, some say that immunity should be granted only in cases of negligence, not in cases of "gross negligence."  Ok, that sounds reasonable...  until you consider the relevant law.

You see, "gross negligence" is not a theory of liability in tort law.  It is just a way to describe a high degree of negligence.  And, whether the conduct of a defendant will be considered "gross" is usually a matter of fact for the jury to decide.

In addition, at one point U.S. Chamber of Commerce Executive Vice President and Chief Policy Officer Neil Bradley told National Public Radio that the Chamber is not asking for blanket immunity, but "a safe harbor ... against frivolous lawsuits."  This is nonsense.  If that is all they want, they don't need to do anything.  Filing frivolous lawsuits will subject the plaintiff's lawyer to sanctions both under the rules of civil procedure and the rules of professional responsibility.

For more on the debate on whether to grant immunity to businesses for injuries related to Covid-19 go herehere and here.

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