In an article published in the New York Times today, it is reported that business groups are attempting to get the Federal Government to limit all lawsuits brought by customers or employees who have claims arising out of contracting COVID-19. “Immunity” from lawsuits is traditionally limited to governmental agencies. This type of immunity is called Sovereign Immunity, and it shields all governmental agencies from lawsuits, due to their negligence, except under very limited circumstances. Furthermore, if a lawsuit against the local, state or federal government is allowed to go forward, there is a “cap” on what you can recover as damages.
A blanket “immunity” from any lawsuits for all businesses in the entire country arising out of COVID-19 infections would be unfair, even though it sounds like a reasonable approach to preventing “financial ruin,” as companies begin to re-open after months of quarantine.
As we all know, as the country opens back up, there are specific rules and regulations that businesses will be required to follow, such as maintaining social distancing, requiring limited occupancy, providing guests and employees PPE’s (personal protective equipment), cleaning and decontamination practices and procedures, etc. These practices will cost businesses money to comply. Some of them, such as restaurants, won’t even be able to comply with the severe social distancing requirements imposed on them, and many experts predict two out of every three restaurants in this country will not survive.
In an effort to save our economy from a depression, we must resist the urge to give away some of the protections we all need for a civil society. All of the safety protocols we talk about businesses being mandated to comply with, such as those mentioned above, are meaningless without any real enforcement. In our society, if the government fails to act fast enough to protect people, private lawsuits will usually step in and impose a financial punishment on business for noncompliance. That is why a company that makes a dangerous product that kills someone, for example, won’t continue to make that dangerous product anymore, if they are hit with a huge wrongful death lawsuit by the family of the person killed due to the product defect. Traditionally, the threat of a lawsuit in America has kept big business in check and has forced them to comply with burdensome regulations.
If a restaurant knows it can ignore the social distancing requirements because the government really cannot do much more than impose a small fine, or if a retail store fails to provide its employees masks and gloves when dealing with the public because they are expensive and difficult to find, then we are destined to have a significant increase in the infection rate. As a society, we expect the “rules of the road” to be followed by all businesses, but if they fail to do so and someone gets infected, or dies, shouldn’t the business be held accountable in some way for failing to comply with mandated safety precautions? If not, and without any enforceable rules, where are we as a society?
I would suggest that before we rush to eliminate any responsibility of a business owner to protect its customers and employees, we need to consider striking a balance. That balance, I would suggest, would be to allow a lawsuit against a company to proceed for violations of mandated safety precautions if a Plaintiff can show unreasonable exposure. The Plaintiff would have the burden of proving that proper safety measures were not being followed and that this failure caused the person to contract the coronavirus.
The basic legal requirement of “causation” would limit most lawsuits against a company anyway, even without the need for a blanket “immunity,” because in most cases it will be extremely difficult for a Plaintiff to prove where he or she contracted the coronavirus.
Robert Gluck is a trial lawyer practicing for the past 32 years in South Florida, with offices in Naples, Florida and Plantation, Florida, specializing in Personal Injury Litigation, including premises liability claims against businesses whose negligence causes injury to others. If you have any questions regarding premises liability claims against a business or any other personal injury matter, just contact Mr. Gluck by visiting his website at www.robertgluck.com or emailing him right away at [email protected]