Below is my column in The Hill on the legal foundation for an economic recovery in reopening businesses in the United States. While some often seem to assume a zero tolerance approach for any risk of spread, we have no choice but to try to get this economy out of the current disastrous conditions. Unless we want to reintroduce a barter economy, we need to stop the exponential growth of debt coupled with the perilous decline of employment. The key may be individual choice and an ancient legal doctrine.
As pressure builds on states to open, many governors are starting to ease lockdown orders. That decision is not purely a public health matter but a public policy matter with interlaced issues of law, finance, and medicine. Congress and states must decide how legally to restart an economy in a world saturated by the coronavirus. With expensive recovery measures and a federal deficit projected at more than $30 trillion by the summer, we face a real possibility of a lost generation due to crippling debt and chronic unemployment. So this means businesses and institutions will need to operate in a way that is sustainable instead of just symbolic.
The legal challenge here is to open up the country fully when we cannot reasonably expect any vaccination program until next year, according to most experts. Thus, in the interim, our best hope may be an ancient legal doctrine that extends back to Roman law in the sixth century. “Volenti non fit injuria” means “no wrong is done to one who consents,” and it became the solid foundation for what we know today as “assumption of risk.” The doctrine encapsulates the concept of personal responsibility and choice. Thus, any economic opening precisely requires not liability but choice.
But assumption of risk, which began as a doctrine in employment liability cases in the United States, has already been on the decline in this country. Assumption was an absolute defense, but most states have now adopted an alternative “comparative negligence” approach in which jurors assign the portion of responsibility of each party in their verdict. If the plaintiff or the injured party is found to be 20 percent at fault, the award is reduced by that amount. Some states apply an additional rule that if plaintiffs are more than 50 percent at fault, then they are barred from any recovery.
The problem for businesses in this pandemic is that every case presents different arguable facts as to who is more at fault from the spread of the coronavirus. Is it the individual or the establishment? Strong defenses do exist, including factual causation where a plaintiff needs to establish that a particular location was the source. Indeed, it is difficult to imagine how someone could prevail against a business on the speculation that he or she contracted the disease from any single contact inside the business.
Yet states are adding different conditions and responsibilities that could fuel claims. There could also be a tsunami of litigation of strike lawsuits, cases brought with the intention of forcing a quick settlement, and even stronger liability lawsuits. If there will be a reliance on individual choice without the exposure to prohibitive litigation costs, then there is a need for uniform legislation on the state level and possibly the federal level.
Negligence can be wildly difficult to define in a world after a pandemic, where businesses are not being careless but must operate in a high risk environment. Any economic recovery needs to occur at a time when the majority of customers will be neither immune nor vaccinated against the disease. Businesses cannot question every group to determine if they are all family members or what each of their personal medical conditions are.
Take my neighborhood pool in McLean in Virginia. The board has debated whether it can afford to open it this year, given the uncertainty of what the state mandates. The state cannot expect lifeguards to constantly separate people or teenage workers to constantly check temperatures. It can clean surfaces regularly and can separate tables. While there is no evidence that the coronavirus can spread through chlorinated water, children will gather in groups and people might not be honest about their symptoms. There is no method to protect against transmission and remain a functioning pool.
In deciding whether to open, businesses now must balance the possibility of coronavirus infection against the near certainty of legal exposure. One can understand if they feel like they are being set up by those politicians who often speak as if they have a zero tolerance for any transmission risk. States are creating a host of duties for businesses to manage, even those directed at customers like the requirements that they wear masks inside.
In Kansas City, there is a rule limiting many businesses to 10 customers or 10 percent of occupancy. If customers linger for over 10 minutes, stores are asked to take down their identities and contact information to allow for possible reporting to state officials. In New Mexico, hotels and other places of lodging are allowed to operate at no more than 25 percent of maximum occupancy, reduced from the previously arduous 50 percent occupancy order. Each order can be the basis for a negligence lawsuit.
Many industries are already arguing for sweeping immunity protections from lawsuits alleging the contraction of the coronavirus. However, such sweeping immunity laws can remove the incentive for businesses to take precautions. The most logical path to reopening is to keep up pressure, including liability, on those businesses like nursing homes with high risk occupants or customers. Though nursing homes are seeking immunity, incentives or disincentives for high risk businesses must be preserved.
Alternatively, states can pass laws allowing for conditional assumption defenses. Businesses could be given immunity if they post prominent warnings that customers must assume the risk of entering or engaging. Congress has passed such an immunity law, for drug companies, which has been upheld by the Supreme Court. Under the National Childhood Vaccine Injury Act, vaccine manufacturers cannot be held liable for an injury or death related to a vaccine “if the injury or death resulted from side effects that were unavoidable even though a vaccine was properly prepared and was accompanied by proper directions and warnings.”
Indeed, Congress can pass the same type of law to protect any business from lawsuits over the contraction of the coronavirus if the business was properly maintained and displayed proper directions and warnings. Many states allow hotel pools to be protected from lawsuits over drownings, for instance, if the posted warnings indicated that no lifeguards are present.
Congress can arguably not only pass such immunity for federal enclaves but condition relief on such legal measures that allow for the opening of the economy. Under such a law, businesses and institutions can resume full operations with protection, so long as they meet conditions like the cleaning of equipment, the testing of employees, and posted warnings. Regulated industries such as the airlines today are subject to new rules, like proposed use of ultraviolet lighting to kill the coronavirus on board.
Otherwise, the choice would be left to individuals on the level of risk they are willing to take. For younger people, that risk might be sufficiently low enough to venture out to bars, restaurants, or sporting events. There has been more information now readily available to the public to make such critical decisions and to take personal responsibility for their decisions.
Torts scholar Francis Bohlen once described “volenti non fit injuria” as a “terse expression of the individualistic tendency of the common law” that “naturally regards the freedom of individual action as the keystone of the whole structure.” In either common law or legislative form, our future in this country may depend on that “freedom of individual action.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.