Business protection from COVID-19 lawsuits? It already exists

The coronavirus pandemic has stoked fears among businesses that they will be targeted with lawsuits as they reopen for business. They foresee customers and employees lining up to sue, claiming unsafe conditions and negligent exposure to the virus, along with mult-million-dollar wrongful death claims from victims' family members. They envision years of litigation, astronomical legal defense bills, and millions of dollars in payouts.

Businesses are so paranoid by the specter of liability they've asked the Trump administration and Congress to shield them from a broad range of COVID-19 related lawsuits tied to reopening the economy. Senate Majority Leader Mitch McConnell has heard their plea and has now identified an "urgent need" to enact legislation, citing the risk of "years of endless lawsuits" arising from "a massive tangle of federal and state laws." Labor leaders have, understandably, pushed back, arguing that such immunity will give companies a green light to act irresponsibly, further endangering lives and health.

Both sides are correct. With no liability limits, it will be open season on American businesses. Victims of the virus will be free to go after companies that are doing their best to reestablish day-to-day operations and prevent permanent closures. Businesses teetering on the financial precipice could easily go over the edge. At the same time, nothing but disaster will result from granting complete and comprehensive immunity for pandemic-related claims. A blank check for American businesses allows unscrupulous, profit-driven businesses to do whatever they want, regardless of the consequences. Complete immunity will lead to recklessness, encouraging companies to shortchange any investment in making their premises safer.

We must find a reasonable balance between the need to protect businesses from frivolous lawsuits and the need to protect consumers and employees. Such a balance already exists; it relies on common sense and industry standards. Rather than invoking extensive governmental involvement to protect businesses, we should invoke existing industry guidelines. Most industries self-govern, relying on self-imposed standards endorsed by experts.

There is no need to reinvent the wheel. If you live in rainy Seattle and happen to slip on the wet floor of a retail store, you may sue only if you can show that the store violated retail industry standards and/or accepted norms in properly maintaining the premises. The business is not strictly responsible for every fall just because it rains outside. Similarly -- in a more relevant industry, where viruses are prevalent -- if your mother contracted an infection while hospitalized, it can be argued that this was a known and foreseeable risk. Unless the hospital failed to adhere to fundamental standards of care in keeping the premises safe, you cannot claim that the hospital's negligence caused your mother's infection. Industry standards, if they are complied with, provide sufficient protection for businesses from liability exposure.

The novel coronavirus is so new that we're learning more about it every day. But industries such as food service, healthcare, manufacturing, hospitality, and retail have been around for a long time. Every one of them has a commonly accepted and recognized way to protect the safety of employees and consumers. These standards of operation, often documented and enforced by industry bodies and personal injury attorneys, have been driven by customer expectations, principles of risk mitigation, and the availability and cost of maintaining reasonably safe premises.

Those same industry standards can and should mold the business response to COVID-19. Legislators don't know the ins and outs of running a restaurant or a daycare center. But industry trade groups know exactly what it will cost to install sneeze guards or hand sanitizers. They know the budget constraints of their members, as well as their customers' pain points. They understand how and where customer interactions occur and the best ways to mitigate exposure.

Any sort of liability limitation must be realistic, and it must be clear. Limits should coincide with accepted industry benchmarks, providing an objective set of guidelines for business owners, as well as judges. If companies adhere to the applicable standards, they will have absolute immunity from liability exposure. They cannot be held liable if they have adhered to the relevant industry standards for providing reasonably safe premises. If companies fail to take reasonably necessary steps, all bets are off: Why should we provide immunity to a business that puts profits over safety and does nothing to maintain its premises in reasonably safe condition?

Where benchmarks are set will vary from industry to industry, but experts can help identify and refine them in response to what we now know and are continuing to learn about COVID-19. It will be an ongoing process. Businesses will push for the least burdensome alternatives while consumer groups will want the highest levels of protection. The result should be industry standards supported by experts that equitably balance the businesses' need to stay financially competitive and the need for consumers and employees to be reasonably safe on the premises. Because the duration of the pandemic is still unknown and we are learning more about how to handle this virus, agreed-upon standards should be subject to periodic reviews (ideally every 3-6 months) so that improvements to the standards can be considered.

Liability limits will, of course, substantially narrow the window for lawsuits. Even without those limits, however, a lawsuit tsunami will not happen. As with every tort claim, a COVID-19 plaintiff's personal injury claim must establish three elements in order to recover damages: (1) duty of care, (2) breach of that duty and (3) causation. Assuming standards have been established for the relevant industry, the first two of these elements should be relatively easy to determine. The element of causation, however, will be an enormous hurdle and one that very few plaintiffs will be able to overcome. The virus has a long incubation period -- up to 14 days -- and carriers can be asymptomatic. It will be almost impossible to prove the exact time and location of a retail or restaurant customer's exposure to the virus. As a plaintiff's attorney, I would be unwilling to take a case with such low odds of success.

The bottom line is that providing comprehensive immunity to American businesses, to enable them to reopen doors and serve the public, is a disastrous solution. Instead, the government should focus on setting reasonable industry standards, with the help of safety and health experts in those industries, so that businesses large and small can comply with established and agreed-upon standards and thus be shielded from liability. 