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Liability Concerns in the COVID-19 Era

Many years ago my husband, children, and I were visiting friends in their home. At one point my husband pulled me aside and told me to watch our kids closely if they were venturing up and down the staircase in the home because it was not up to code. My father and my husband are both attorneys, and so conversations about legal liability, building codes, and HIPAA violations have always been a part of my life. Rarely do I walk the aisles of a grocery store without subconsciously looking for hazards that could land the store in legal hot water. 

In America, legal liability is a concern that never ceases, not even during a global pandemic. There is seemingly no aspect of life COVID-19 has not touched and altered in some way, and the law is no exception. The medical and scientific communities continue to scramble to learn all they can about this new virus, how it spreads, how to detect it, and how best to treat it. The legal community has been scrambling and will continue to scramble as well. Court challenges over government mandates have already popped up. Earlier this month the Texas Supreme Court weighed in on a challenge to stay-at-home orders. 

As Georgia, Colorado, and other states seek to begin the process of reopening for business, legal questions beyond the legality of stay-at-home orders and mask mandates loom. Businesses are already reeling from weeks of closure. Some are hanging on thanks to a government loan. Some restaurants have been eking by because of loyal customers making use of still-legal take-out options. Government loans and take-out orders are not going to sustain businesses much longer, but in order to forge a path back to something resembling normalcy both business owners and customers need some reassurances about what it will mean for the public to once again occupy public spaces given what we now know about the spread of COVID-19. 

We will not get our economy back on track if customers are skittish about venturing out into public. We will also not get our economy back on track if business owners cannot operate without some reassurances regarding their potential liability should an employee or customer claim to have been infected due to negligence on the part of the business owner. White House advisor Larry Kudlow has weighed in on the question of business liability, explaining on CNBC that, “You can’t throw big lawsuits at them. And I think liability reforms and safeguards are going to be a very important part of it.” 

Unfortunately we are an overly litigious society, and a global pandemic will do nothing to change that. Too many people see a grape on the floor at the grocery store and immediately see dollar signs. Doctors have asked for malpractice protections as they battle COVID-19 on the front lines, citing liability concerns as they anticipate having to perform unfamiliar jobs due to the evolving nature of what we know about this virus. A handful of governors have issued orders raising the liability standards for, “injuries or deaths while working in support of the state’s response to COVID-19 from negligence to gross negligence, or an egregious deviation from standard care.

If the government seeks to continue helping businesses, especially small businesses, navigate this crisis it is imperative some safeguards be put in place to protect business owners from the lawsuits that are inevitable. In the same way medical malpractice insurance premiums and lawsuits drive doctors from their chosen field, we cannot expect an economic recovery if we sit back and allow business owners who are already hurting to be sued for what little they have left. 

Obviously businesses should take reasonable steps to protect the health of their employees and their customers, but unless we are prepared to see countless businesses sued into oblivion, the pockets of trial lawyers lined with what little the owners have left, Larry Kudlow is correct about the need to offer business owners some liability protection. We have no healthcare without doctors, and we have no economy without business owners who employ people; we owe both groups some reasonable protections against lawsuits as they navigate the fallout of this virus.

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