Ultimate immunity

Senate Majority Leader Mitch McConnell (R-KY) (Photo By Tom Williams/CQ-Roll Call, Inc via Getty Images)

With the pandemic raging and unemployment well above 10%, Congress is rushing to pass another relief bill. Extended unemployment assistance will expire in days, millions are at imminent risk of eviction, and there are still major backlogs in COVID-19 testing. 

But the top priority for the White House and Senate Republicans is not economic relief or improving testing to slow the spread of the virus. The top priority is to grant businesses near-total immunity if they expose their workers or customers to COVID-19. Senate Majority Leader Mitch McConnell has repeatedly said the Senate will not vote on any bill that doesn't include a liability shield for businesses. 

Successfully suing a business for exposing someone to COVID-19 is already extremely difficult. Part of the reason is that it is difficult to successfully sue anyone for causing an injury. This kind of suit is known as "tort action." In the United States, 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."

Avoiding liability does not take "superhuman" efforts. Rather, defendants win if they show they have taken "reasonable, ordinarily prudent, duly considerate measures to limit the risks of injury they impose on others." 

Even if an injury victim proves the defendant was negligent, "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."

The nature of COVID-19 makes these standards particularly difficult for plaintiffs to meet. It is difficult to prove where someone contracted COVID-19, since it is highly contagious and can spread in a variety of settings. Even if someone was able to establish the likelihood that they contracted the virus in a particular establishment, they would have to prove that their own carelessness (infrequent handwashing, failure to social distance, not wearing a mask) was not a contributing factor. 

In other words, under the status quo, a COVID-19-related lawsuit is only likely to be successful in the most egregious cases. 

This is why, despite dire warnings, there has not been a flood of consumer lawsuits related to contracting COVID-19 in a public setting. According to a tracker maintained by Hunton Andrews Kurth, just 16 lawsuits have been filed nationally by consumers related to contracting COVID-19 in a public place.

The Republican proposal

The proposal advanced by Senate Republicans and the White House, however, would make any lawsuit — even against the most irresponsible business — virtually impossible. 

The Republican legislation shields business from COVID-19 liability for "negligence." Instead, it only permits liability for "gross negligence," which is defined as "a conscious, voluntary act or omission in reckless disregard" of someone else's safety. In other words, it's not enough for a business to act recklessly and put someone's safety in danger. Plaintiffs would have to prove the business engaged in the conduct on purpose, knowing it would put people in danger. 

Further, plaintiffs are required to establish "gross negligence" by "clear and convincing evidence," a much higher standard than the standard for negligence, which is "more likely than not." Even if plaintiffs meet that higher standard, defendants can also prevail if they show they made "reasonable efforts" to comply with government guidelines. That means a "grossly negligent defendant can possibly escape liability if it can establish it simply tried, but failed, to comply with coronavirus safety measures." Another complicating factor is that guidelines from the CDC for businesses are not mandatory so one can be in compliance with the guidelines without doing anything at all.

Plaintiffs would also be required "to provide a list of the places they went and people they met in the 14-day period prior to experiencing symptoms, as well as any persons who visited their residence during that period." This requirement is to assist defendants in attributing blame to the plaintiff. 

The proposal also mandates that all COVID-19 lawsuits be filed in federal court, a venue considered much more favorable to defendants than state courts. No personal injury or medical malpractice suits related to COVID-19 would be permitted in state courts.

Should a plaintiff somehow be able to prevail, the bill imposes significant limitations on damages. All of these limitations would remain in place for at least five years and would apply retroactively to infections that occurred before its passage. The bill also allows "prevailing defendants to seek compensatory and punitive damages if a claim outlined in a demand letter turns out to be meritless." 

So what's the impact of the Republican proposal? Under the status quo, COVID-19 litigation is unlikely, but something that businesses still need to consider as a possibility. Under the Republican proposal, businesses will know they are fully protected from liability in almost any conceivable scenario. This will incent many businesses to cut corners on safety protocols to reduce costs. 

What happened in Utah

On May 4, Utah enacted "new legislation that grants civil immunity to persons (including private employers, businesses, and government) related to exposure to COVID-19." The only exception, similar to the new proposal by national Republicans, was for "willful misconduct." 

The following day, local media reported that "nearly half of the employees" of one business "tested positive for COVID-19 after the business instructed employees to not follow quarantine guidelines and required staff who had tested positive to report to work." The business has not been identified.

The infections likely occurred while the legislation was being considered. It's not clear whether the imminent legal protections influenced the business' behavior. But it is an example of what can happen when businesses believe they can act with impunity. 

There are already about a dozen states with COVID-19 immunity laws. Many of those states, including Alabama, North Carolina, and Arkansas, are experiencing widespread outbreaks. 

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