Any Imposition of Liability Related to the Coronavirus Must be Based on Standards that Recognize these Extraordinary Circumstances

April 20, 2020

As our nation copes with the coronavirus pandemic, we are all concerned about the health and well being of our families and neighbors. We are in this together. We are experiencing a devotion to duty and a level of responsibility throughout our society that is inspiring and reminiscent of our national effort during World War II. 

Great courage and determination are being displayed by our healthcare providers, first responders, and the workers who are keeping the essential elements of our economy functioning – food producers, truckers, manufacturers of needed products, warehouse workers, and grocers, to name a few.

As a nation, we have before us the formidable tasks of controlling and defeating the virus, restoring our society, and rebuilding our economy. A tsunami of plaintiff-lawyer inspired litigation will not assist our efforts. Quite the contrary. Greed-driven mass litigation will cause delay and division and impose costs that will hamper our recovery and impede the ability of our businesses and industries to restore our economy to its pre-virus vigor and bring us back to full employment. 

Businesses and professionals are dealing with unique and challenging circumstances. Innovation and adaptability are required both to respond to the health issues caused by the virus and to reopen our economy. They deserve reasonable protections. The federal and state governments – in executive orders, administrative regulations and legislation – should provide reasonable liability protections to our healthcare providers and businesses, including forward-looking protections for businesses as they restart and recover from this global pandemic. 

Any liability related to this pandemic should take into account that the virus itself is the essential cause of harm. Businesses and professionals should not be penalized by lawsuits that seek to blame the blameless. A plaintiff should be required to show a direct causation link between the defendant and the harm suffered by the plaintiff. Essential businesses should not face liability based on the clarity of 20/20 hindsight. Instead, liability should incur only if their actions were reckless in a time of great uncertainty. For our healthcare providers, working under demanding circumstances, liability should be imposed only for intentional harmful acts or gross negligence. And no business or professional should face liability if it acts in good faith in following government guidance when reopening while the pandemic remains a threat. 

Let’s work together to defeat this virus pandemic and prevent a tsunami of greed-fed litigation.