May 11, 2020

We Need to Provide Resources for COVID-19 Victims, Not Tort Immunity for Businesses

Heidi Li Feldman Professor of Law and Associate Professor of Philosophy at Georgetown University Law Center

Tort law makes it unlikely businesses would be found liable for the costs of COVID-19 infection among workers and consumers, yet American businesses are lobbying hard for immunity from suit. How to make sense of this? The best explanation is that businesses and their liability insurers anticipate massive rates of illness and death upon reopening the economy. Faced with medical expenses and lost wages, desperate claimants might file suits in hopes of prompting settlements even from prudent businesses who have taken precautions against exacerbating the rate and amount of infection. In other words, the push for “liability shields” rests on a recognition that reopening the economy is going to make a lot of people very ill and facing large expenses, rather than the stated concern that cautious businesses would not be able to successfully defend against tort claims. If many people are going to be devastated by disease, we should not  be providing business with tort immunity. Instead, we should be planning to provide resources to the millions who will fall ill and families whose members die. If we do this, businesses will be far less likely to face great waves of claims, and we can leave the tort system to impose liability on those actors who fail to take reasonable, prudent precautions against workplace infections.

American tort law makes it challenging for individuals to recover damages from those who may well have injured them. An injury victim generally bears the burden of proof on every element of a tort action, so that to recover in a negligence suit, for example, the plaintiff must convince a factfinder that it is more likely than not that a defendant was careless, this carelessness empirically caused injury and played a significant causal role, and that injury inflicted specific losses. Furthermore, the plaintiff’s case can be countered by a defendant who can successfully persuade the factfinder that the plaintiff’s own conduct was, more likely than not, careless and played a significant causal role in bringing about the losses alleged.

Picture a situation where a warehouse or factory worker comes down with COVID-19. That person won’t have a ready tort claim against their employer in any event as he or she will have to turn first to workers compensation. But assume that the worker’s spouse also contracts COVID-19, with grave consequences. It is very hard to see how the spouse would have a viable claim against the warehouse or factory owner.

The spouse would have to show the warehouse or factory owner omitted precautions a reasonable, ordinarily prudent person would have taken to protect people’s safety. Unless we are talking about an enterprise that was operating without social distancing, appropriate ventilation, gloves and masks, and cleaning and disinfecting and so forth, this would be hard to establish. Tort law does not expect those who create risk of personal injury to take superhuman or even supererogatory precautions; to avoid being legally at fault, a business need only take reasonable, ordinarily prudent, duly considerate measures to limit the risks of injury they impose on others.

Additionally, to win a lawsuit, the spouse would have to show that the conduct of even a legally careless factory or warehouse owner was, more likely than not, a source of his or her COVID-19 and a significant causal factor in his or her case. Since the very problem with COVID-19 is that it is caused by a highly contagious, pervasive virus and since we are assuming the spouse contracted the disease upon reopening, there will be many ways in which the worker and the worker’s spouse could have been exposed to the virus. Showing that, more probably than not, it was the worker’s exposure at the factory or warehouse that caused the spouse’s particular illness and also that the workplace exposure more probably than not directly caused the spouse’s COVID-19 would be daunting.

Even if the spouse could make out legal carelessness and causation, the warehouse or factory owner would be able to argue for a reduction in its responsibility for damages if it can show that the spouse engaged in legally careless conduct that exposed him or her to the virus and that this exposure played a significant causal role in the spouse’s illness. Any inattentiveness to handwashing, mask-wearing, or social distancing by the spouse would ground this sort of defense. The more instances of legal carelessness by the spouse, the more likely that his or her own conduct swamped any causal role played by his or her partner’s workplace exposure.

As this example illustrates, between being able to rebut claims of carelessness and causation and citing victim’s own conduct as a source of their illnesses, businesses stand a good chance of prevailing in COVID-19 tort suits brought against them. Typically, that means would-be plaintiffs would find it difficult to find lawyers to bring such suits. Plaintiffs’ attorneys litigating personal injury cases generally only get paid if their client wins the suit, so attorneys decline improbable claims.

If, however, millions of Americans have no place to turn for assistance in bearing the costs of sickness and death from COVID-19, some attorneys might bring suit, hoping the sheer number of sick and ill plaintiffs will encourage liability insurers to settle rather than pay the costs of defending in court. Unlike litigation, settlement would not differentiate those employers and businesses whose careless conduct causes extra infections from employers and businesses acting prudently and safeguarding against enhanced rates of disease.

In this way, even cautious businesses could end up bearing the medical expenses, lost wages, and pain and suffering of ill and deceased workers and consumers.

Ordinarily, businesses deal with the prospect of litigation and settlement by reducing the risks they create or by raising their prices to cover liability insurance premiums. The drive for immunity suggests: American businesses recognize that they cannot do much to reduce the incidence of COVID-19 as the economy reopens; they anticipate large scale serious illness; and they do not think they can simply pass along the costs of liability insurance to consumers, presumably because the threat of illness-driven claims is making liability insurance expensive.

We should be sensitive to businesses’ push for liability immunity when tort law does not actually warrant fear of liability. The push tells us that businesses do fear claims. Science tells us that millions of Americans will suffer illness and death from COVID-19 in the coming months. However, neither factor justifies liability immunity for businesses. If we cannot or will not cover the costs of a pandemic by paying higher prices for goods and services nor limit costs by staying home, and if we do not want to leave COVID-19 victims without funds for medical care and living expenses,  we need systematic social welfare funds to meet the needs of the sick and the dependents of those who die.