As the country slowly begins to reopen the economy, the primary concern still revolves around the safety of the population from COVID-19.
Businesses want to reopen, but some fear that litigation over virus exposure or contraction could bankrupt companies. Some politicians are promoting the idea of legal immunity, while others are advocating for specific guidelines.
Immunity is a common legal principle, but its extension has been limited to specific persons or entities.
The issue of shielding businesses from coronavirus liability has become a primary concern for Senate Majority Leader Mitch McConnell. He is threatening to withhold additional relief money without complete immunity for all businesses absent gross negligence. McConnell believes trial lawyers will ruin businesses across the country with tort cases for those infected with COVID-19.
Last month, McConnell said “If people don’t come and businesses are afraid to open because of the lawyers that are lurking on the curbside outside their doors, we won’t have the reopening we want.”
He characterized this supposed wave of litigation as a “second pandemic.”
Immunity is a legal status whereby an individual or entity cannot be held legally liable for any reason. Immunity generally is restricted to small situations or more commonly shields the government from lawsuits. However, a vast expansion would create a situation where businesses are free to disregard rules and regulations without any ramifications.
For example, Utah passed a bill immunizing business from pandemic-related litigation and issued only advisory guidelines. It was later reported that multiple businesses told employees to disregard guidelines, and ordered infected employees to report to work.
By contrast, suits have been filed in Missouri and South Dakota for creating a public nuisance in facilities where guidelines were not being followed.
The reality here is that coronavirus litigation will not be flooding our courts any time soon. Trial lawyers and a fear of litigation are a safeguard in the system of our society. Most trial lawyers work on a contingency fee so they have little incentive to bring cases that cannot yield money.
Next, Ohio already has a workers’ compensation system that prevents employees from bringing negligence suits against their companies. An employee must show that an employer intentionally caused their harm in order to bring a suit. This is already an immense hurdle.
Another existing roadblock to coronavirus litigation is the legal theory of causation. A lawyer must prove, by a preponderance, that a business’s negligence is a direct and proximate result of someone’s virus contraction or injury. Based on what we know of the virus, this principle will be extremely difficult for any lawyer.
The virus incubation period is so long that many alternative contraction theories could be introduced at trial. Additionally, only specific evidence would allow a plaintiff to avoid having a case dismissed before trial.
America does not need blanket immunity for businesses regarding coronavirus. Our legal system already has heavy checks and balances on frivolous litigation.
Lawyers help protect the public from people disregarding obligations. We need guidelines and not immunity.