Throughout most of the nation, the curve of the coronavirus has been decisively flattened. The healthcare system has not only survived but also excelled, keeping more than 94% of confirmed infected patients alive, a number that will only increase as testing ramps up. That’s better than Britain’s National Health Service or the healthcare systems of France, Belgium, Canada, Italy, Spain, Ireland, or Sweden, among others.
But there are limits to how quickly commercial and economic life can resume because no government snap of the fingers can restore life to the way it was. Customer-facing businesses, in particular, can resume commercial activity only to the extent that fear of infection fades and customers start coming back in through the Main Street doors.
But it is not only consumers who are fearful. Business owners, too, are worried about legal liability when they reopen. Disney is now requiring patrons to sign waivers, which will doubtless be contested in court. Lawsuits are already being launched against cruise lines, nursing homes, and Walmart. Trial lawyers smell blood. Some people speculate that the coronavirus could be “the new asbestos.”
Undeserved liability is an artificial and unnecessary obstacle to the recovery, which Congress must mitigate in its next round of coronavirus legislation.
Businesses will open more slowly, if they open at all, if they are left prey to predatory lawsuits. And the nation cannot wait for the economy to revive. The last thing we can afford is to have everybody suing everybody else in state courts on the theory that they caught the virus while in someone’s business. Even worse would be broader public nuisance lawsuits, making the case that deep-pocketed businesses are liable for spreading the disease by the very fact of their being open. Trial lawyers will quickly seek out these new gold mines and profit at others’ expense.
Congress can do only so much when it comes to state-level liability claims. Gross negligence makes tort claims appropriate. But Congress can do a few important things to shield businesses that try to serve the public in good faith and follow the rules about social distancing and cleanliness. Lawmakers can take concrete steps to keep the coronavirus from becoming trial lawyers’ latest exploit.
First and most importantly, state lawmakers should seek to create a safe harbor against blame for COVID-19 infections for businesses that obey public health guidelines. If public officials make the wrong decisions and outbreaks result, businesses should not be penalized for those government mistakes.
And Congress can encourage such safe harbor laws by demanding that states pass them if they want further coronavirus relief funding. There is little sense in pouring more federal money into states and then see it funneled into trial lawyers’ pockets.
No state, red or blue, should want to make itself the habitat for vultures, to hang its recovering businesses and their employees out to dry so lawyers can pick them clean.
Millions of formerly productive workers are desperate and living from their savings. They are eager to get back to work, and their lives must not be further damaged by an outbreak of litigation. Congress should help make this possible by acting quickly.
