Coronavirus and Legal Liability
For the last several weeks, deaths from the Coronavirus have exceeded 3,000 Americans a day. Some of the epidemiologist measuring the impact of the virus estimate close to a total of 500,000 deaths from the virus by the end of February. We really do live in unprecedented times. Many politicians in Washington and in Austin are using the virus and the mayhem caused by it to try to accomplish long-term goals of gutting tort laws that protect people from the wrongful acts of others.
Without any real evidence, these politicians are warning of a non-existent litigation surge that will supposedly wipe out struggling businesses and kill jobs. The feared lawsuits do not exist, but the fear of these lawsuits is generating contributions and inciting action. These claims closely mirror claims made in every crisis faced by our nation over the last 50 years. In Austin, the talk of the town is for pandemic related liability protections that will, of course, outlive the pandemic. Before allowing these folks to take your rights, consider what the law is now and how it really does strike a good balance between protecting folks from the bad choices of others, while accounting for changing circumstances to enable businesses to adjust their safety planning and execution as the situation evolves.
We currently have a system that says when there is a duty between folks, such as to provide a safe working environment or operate equipment like a car or truck in a safe manner, the job will be performed as a reasonable and prudent person would perform the job, under all facts and circumstances then existing. Simple, flexible, and fair. In a word, perfect.
The standard does not allow people to act unreasonably, but allows for changes in circumstances, over time, that would result in different protected behavior or acts that could result in liability. This standard does not allow companies and individuals to take reckless actions that harm others, without the threat of being hauled into court. Folks selling a change in this standard want immunity, a get-out-of-court-free card, for those whose poor choices injure or kill their workers or others in the community.
How should Coronavirus impact your legal rights? In my view, it should not matter. Businesses who are providing goods and services, hiring people to work, and working with the public, should be held to the flexible and fair standard developed through decades of common law. If a business is acting reasonably under the facts and circumstances then known, and Coronavirus harms a customer or employee, the case will be lost if it is brought at all. However, if a business chooses not to take or enforce reasonable safety precautions known at the time and place, and as a result people are harmed or killed, the business should be accountable to the victim for the harm caused because we want our businesses to act safely.
Right now, down in Austin, law makers are plotting with special interests to not let the pandemic go to waste. They are plotting to give wrongdoers immunity for their acts regardless of the facts and circumstances. Get involved. Contact your state representative or state senator, or follow public interest entities, like Texas Watch, to see what you can do to insure that your rights are not sacrificed on the altar of protecting business.