COVID and Business

Legal immunities that remove the incentive for businesses and schools to act reasonably would place our most vulnerable Californians at risk. Let's protect our citizens, not negligent parties.

As with any crisis, there are some who look for opportunity to weaken laws that mandate responsible and non-negligent behavior. For example, in 2020 we saw a slew of bills seeking to grant broad legal immunity relating to COVID-19 exposure and liability, including in the education field. Consumer Attorneys of California opposes granting immunities that remove the incentive to act reasonably and believe such a policy would place our most vulnerable Californians at risk.

Immunities from the law remove incentives to make nursing homes, workplaces, and schools safe, leaving workers, children, and the elderly unprotected. Parents should have confidence that they are sending their children to a safe place when they go to school. Likewise workers need to feel safe in their work environments and the elderly who are the most at risk for COVID-19 deserve the utmost protections. When our state begins to safely reopen, frontline workers should not have to worry about their rights and safety being undercut.

The threat of liability is very overblown. There are four essential elements of negligence: (1) the defendant owes the plaintiff a duty of care; (2) the defendant’s conduct fell below that standard of care; (3) the defendant’s failure to meet the standard of care was the cause of the plaintiff’s harm; and (4) the plaintiff was actually harmed. Another way of understanding the standard here is: duty, breach, causation, and damages – and all four elements are required for a negligence claim to survive. Proving up a duty-breach situation would be difficult, and proving up causation of COVID-19 transmission is exceedingly unlikely.

All entities are already protected under the law if they act reasonably. If they have a policy that is consistent with guidance and regulation, and they follow it, then they will have generally met the standard of care under current law. Only unreasonable or negligent conduct gives rise to liability. That’s why immunity for adhering to public health guidance is unnecessary, because reasonable care sets a clear standard that already protects from liability. Stated a different way: if schools, businesses, and nursing homes provide reasonable care under the circumstances as current liability laws require (e.g. establishing best-practice protections for workers, students, and nursing home residents), they have immunity from lawsuits.

Even when a business is negligent, under the law, the plaintiff must prove that the negligence legally caused the injury or death. In order to establish liability, one must prove that but for the business' unreasonable conduct or negligence, the person would not have contracted COVID-19. The gap of three to 11 days between infection and illness, the difficulty of recalling all of one’s contacts during that interval, the chances of exposure from multiple sources, and limited testing for the virus present formidable obstacles to establishing causation for civil liability.

Our focus should not be about liability but rather about what steps we all need to take to control the virus and help avoid outbreaks.