Common sense Covid-19 liability

We have all lived under the threat of the Covid-19 pandemic for several months at this point. Most of us are justifiably concerned about all the uncertainty surrounding this novel coronavirus and the threat that it poses to our families.

As the virus spreads, a question emerges: should businesses and healthcare providers bear liability if their customers or patients are infected? The answer is the same as any analysis of tort liability: in most situations No … but in some situations Yes.

Many states, including Ohio, are advancing legislation to immunize business and healthcare providers from negligence claims relating to Covid-19 infections. This approach is wrong.

Tort liability is based on the duty of “reasonable care” that we all have in our everyday lives. That is to say that the law requires us to act reasonably. I cannot drive my car through a red light because that is not acting reasonably and it puts other drivers in danger. If I do so, I should bear the responsibility if my failure to act reasonably causes harm to someone else.

Covid-19 liability is no different. We all know the virus is highly contagious. As I have told my clients, merely because someone was infected does not mean the place where that person (presumably) caught the virus did not act reasonably. A business or health care provider can do everything right – and the virus could still spread.

But that does not mean our law should grant a free pass to those that do not act reasonably and, in so doing, expose us to danger.

What is reasonable action in light of the global pandemic? It is a matter of common sense. If your employees deal with the public, they should wear masks or basic PPE. Some screening process should be in place to make sure employees are not actively exhibiting symptoms. Employees who do not feel well should be asked to stay at home. General principles of social distancing should be observed in places of public gathering.

If we immunize business and health care providers from liability for negligence, our law is stating that they do not have to act reasonably.

If the places we patronize are not checking to make sure their employees do not have symptoms, are not providing PPE or – worse yet – are not allowing sick employees to call off, they are putting us all in danger.

Think about that the next time you have to go to the store or the gas station or a doctor’s office. Think about your loved ones in a nursing home or residential facility. If the businesses and healthcare providers we visit are not using common sense and you or a family member gets sick – or worse – should the law automatically deny you any recourse?

Regardless of any laws passed, I do not expect many lawsuits for Covid-19 infections. Why? Because we all know it is contagious and it would be almost impossible to prove where anyone actually contracted the virus. If you are on a jury would you hold a business responsible if it acted reasonably and used common sense to protect its customers? I would not.

But there are bad actors, poorly run businesses, and unsanitary healthcare providers. If they do not act reasonably, and people die as a result, a jury should consider whether to hold them legally responsible.

We all have a duty to act reasonably. To do otherwise is no different from a driver running a red light.

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