Governors around the country are attempting to restart the economy by easing restrictions put in place to prevent the spread of COVID-19. The prospect of returning to “normal” amid a pandemic has businesses lobbying Congress to grant them sweeping immunity from civil liability for failure to adequately protect workers and customers from infection.
Senate Majority Leader Mitch McConnell has warned of an “avalanche” of lawsuits that will stymie economic recovery efforts if Congress does not act quickly. He said he won’t let another coronavirus bailout pass the Senate unless it also shields companies from coronavirus-related liability.
My research on the role of civil lawsuits in reducing foodborne illness outbreaks suggests that fears of excessive litigation are unwarranted. What’s more, the modest liability exposure that does exist is important to ensuring businesses take reasonable coronavirus precautions as they reopen their doors.
As a general matter, businesses are subject to civil liability for carelessness that causes injury to others. The law defines carelessness as a failure to exercise “reasonable care.”
In applying this standard, courts consider several factors:
• Did the business take available cost-effective precautions to prevent injury?
• Did the business comply with laws or regulations designed to protect public health and safety?
• Did the business conform to industry standards for health and safety?
• Did the business exercise common sense?
If the answer to one or more of the questions is no, then a court may conclude that the business was careless and is subject to liability for damages to customers who suffered harm.
In the context of the current pandemic, I believe reasonable care sets a clear standard for business owners. Invest in cost-effective precautions such as ensuring employees wear masks and gloves and keeping customers apart. Follow the guidance of health officials and all regulations.
Law-abiding, thoughtful business owners are likely to exercise reasonable care with or without the threat of a lawsuit.
Viable legal claims related to COVID-19 are likely to be extremely rare.
For example, a Georgia nail salon owner recently described her plans for reopening, which included accepting patrons by appointment only, conducting prescreening telephone interviews, limiting the number of people in the salon, and taking temperatures before allowing people to enter.
Predictions of “frivolous” lawsuits appear to be generating unnecessary anxiety among business groups. But they shouldn’t. Personal-injury lawyers representing victims work on a contingency-fee basis. This means that they have no incentive to take on sure-losing cases, and they risk being disciplined for professional misconduct if they do so.
To successfully sue a business for COVID-19 transmission, a patron would have to prove that he or she contracted COVID-19 from the business. However, most people infected with COVID-19 currently have no reliable way of identifying the source of their infection.
Moreover, a business would not be liable to patrons who knowingly and voluntarily assumed the risk of infection.
Viable legal claims related to COVID-19 are likely to be extremely rare.
Yet even occasional lawsuits act as a nudge, encouraging the entire business community to adopt reasonable precautions. This is one of the lessons of civil litigation arising out of foodborne-illness outbreaks.
A small handful of high-profile lawsuits against food companies have encouraged businesses at every link along the supply chain to improve their safety practices.
Similarly, the prospect of liability for COVID-19 transmission is likely to encourage business owners to take precautions.
Shielding business owners from this liability is one kind of immunity that will not help end the current crisis.
Timothy D. Lytton is a professor of law at Georgia State University. Distributed by The Associated Press.