The White House and Senate Republicans are on the right track in pushing for protections against coronavirus-related lawsuits for businesses that reopen according to government guidelines.
These lawsuit protections would have been well justified seven weeks ago and even more justifiable a month ago, and by now, they are desperately needed. All over the country, lawsuits or the fear of suits are affecting decisions about whether businesses will reopen (or remain open), even if governments have given those businesses the green light based on data indicating the health risks are small.
As Victor Schwartz, co-author of one of the most widely used law school textbooks on liability law, told the Financial Times, “It’s only a matter of time until we see those trial lawyer advertisements on TV [saying] ‘have you or a loved one been harmed by coronavirus?’”
To be sure, tort law usually is a province of state governments, not the federal government, but Congress does have (quoting Justia) “broad Constitutional authority to change tort rules under its power to regulate interstate commerce.” A time of national crisis, especially one featuring a combination of a form of natural disaster with government orders that jointly forced the closure or heavy restrictions of many businesses, creates circumstances obviously justifying congressional action.
As White House economic adviser Larry Kudlow told the Washington Examiner, “Businesses, particularly small businesses that don’t have massive resources, should not be held liable. … You have to give the businesses some confidence here [in case] something happens, and it may not be their fault.”
Republican proposals are intended to immunize businesses from liability for people claiming to have contracted COVID-19 while in their establishments — but only if those businesses are fully complying with government directives.
Sen. John Cornyn, R-Tex., has argued, “It seems intuitive to me that if you’re a marginal small business and you’re making the decision whether to hang in there and try to survive, or whether you’re just going to give up and either declare bankruptcy or just become insolvent, that this would around the margins, this could make the difference.” Cornyn’s proposals also would make exceptions for gross negligence, for which businesses still could be sued despite the otherwise general liability shield he would create.
Meanwhile, on a more narrowly targeted but even more morally imperative level, Sen. Ben Sasse, R-Neb., has introduced legislation to shield medical workers from coronavirus-related lawsuits. “In ERs and ICUs across America, doctors and nurses are writing the playbook as they fight this virus one day at a time,” Sasse said. “These heroes need a common-sense liability shield so that they don’t have to worry about lawsuits while they’re scrambling to save lives.”
In this crisis, most people are flying blind. Not even epidemiologists themselves can agree with each other about the exact nature of this contagion or the best ways to handle it. Businesses and medical personnel that abide by existing law, while trying the best they can to make reasonable judgments, should not worry about trial lawyers trying to blame them for the virus’s effects.
Congress should pass liability protection, forthwith.
