Yes, we need litigation protection while reopening the country

A few states are cautiously beginning the process of turning their economies back on and releasing people from mandatory stay at home orders. But that doesn’t mean that all businesses, schools and other entities will be jumping in with both feet. Part of the reason for this is obviously an understandable level of uncertainty as to whether or not it’s safe to do so, but there’s another major factor that we should be dealing with. It’s no secret that we live in a very litigious society, and any business opening up to the public is going to be worried that if anyone contracts COVID-19 on their property they will be sued out of existence. Over at National Review, Dan McLaughlin makes the case that Congress should act now to place reasonable limits on such liabilities so people won’t be so afraid to bring our society back online as soon as can safely be managed.

The chief reason to act in advance to head off civil lawsuits is to avoid the danger that businesses, schools, and other institutions will be excessively cautious and risk-averse in reopening when it is in society’s interests for them to do so. Right now, many institutions are shut down by direct order of the government; others closed voluntarily before government orders were issued, or have closed without being required to do so. Eventually, government restrictions will relax, and that will leave business leaders, school administrators, church leaders, sports-team owners, and others with decisions about when it is safe to open up again. Most of them, however, will be told by the government what they can do, not what they should do.

In making that decision, they are almost certainly going to talk to their lawyers and worry about legal risk. They will be told that they have some defenses, particularly if they can claim they were relying on the guidance of government leaders and public-health experts. Public schools may have additional defenses based on their status as government entities. Cruise ships are protected by federal laws limiting certain liabilities for deaths on the high seas. Still, uncertainty will linger. Small businesses such as barber shops and nail salons are less likely to have lawyers handy for consultation.

As McLaughlin points out, the lawyers are already circling like vultures over a fresh kill. There are “coronavirus litigation task forces” forming right now, bringing lawsuits and soliciting people to make their claims. In some cases, the claims may be justified, but many others will be brought by people who are looking for deep pockets to go after over real or perceived harm that couldn’t reasonably be avoided.

I’m not saying that everyone should just get a free pass on this. There will probably be unfortunate incidences where schools or employers rush to bring things back to normal without taking reasonable precautions. As part of the federal response to the pandemic, the government should be providing clear guidance as to the best practices to follow as we reopen. Students and workers will need to be given more room to spread out and avoid physical contact as much as possible. New sanitation measures will need to be in place and personal protective equipment, hand sanitizer, and other related materials will need to be made available.

But any operation that takes all of these steps and can demonstrate that they’ve made a good faith effort to keep people safe should be offered some sort of shield against crippling lawsuits. The novel coronavirus may well have originated in a Chinese laboratory or perhaps it originally made the jump from some animal to a human being. That doesn’t really matter at this point in terms of the subject under discussion here. For all intents and purposes, we can treat it as an Act of God at this point.

If you operate a business and your building is full of asbestos or mercury, any employees who fall ill should have the right to sue you because you knew (or at least should have known) that you were putting them at risk. The novel coronavirus isn’t something that our businesses and schools could have seen coming and it’s virtually impossible to make an establishment 100% safe without shutting it down entirely. That’s not a suitable answer because we have to get our people back to work and our students back to learning, preferably sooner rather than later. Any institutions that remain shuttered because they are paralyzed with fear of a lawsuit won’t be contributing to that effort.