As a New York personal injury lawyer (serving mostly the Syracuse and Central New York areas), I have pretty strong opinions about so-called “tort reform” (which we personal injury lawyers call “tort deform”): I’m against it. Generally, tort reform is just a power-play by big business, the chamber of commerce and insurance companies to get a free pass to act negligently and injure people without having to pay the price. The “price” of their negligence is shifted to the people who can least afford it: Their injured victims.
But I agree partially with the corporate/insurance lobby’s newest call to arms: They want immunity from coronavirus tort lawsuits for businesses that open up to the public. I agree that restaurants, gyms, and retail stores should get some kind of immunity. Total immunity, no, but rather “qualified” immunity. I’ll explain what I mean further down.
But first, why would a New York personal injury lawyer like me be in favor of a form of personal injury lawsuit protection for certain businesses? Because I want America to get back on its feet. This damn virus has slammed with particular vigor at our retailers and restaurants. Some will never reopen. Those that will are going to need some help. Our restaurants and retail stores are like a boxer who has been felled by a near knockout punch. We need to allow him to get back up on his feet before we can engage him in more fighting. Otherwise, we could kill him. (For a contrary view, read here).
To help these businesses get back on their feet, we should give them temporary immunity from negligence suits brought by customers who claim they contracted the virus on their premises but only inasmuch as they adhere to the governmental guidelines for combating coronavirus spread. That’s what I mean by “qualified” immunity.
For example, they would have to abide by any executive orders requiring them to greet and serve customers with face masks, to take their employees’ temperature daily, to sanitize tables and other spaces, and to space restaurant tables a minimum of six-feet apart. If they do all that (surveillance cameras should be required), they should have an absolute defense to any coronavirus lawsuits.
These struggling businesses should not have to second-guess their government’s guidelines. For example, if the government’s guideline says tables should be six feet apart, a personal injury lawyer should not be able to argue that ten feet was needed. The virus is too new, too unpredictable. Restaurants can’t afford to hire their own epidemiologist. They should be allowed to defer to the government.
I say all this with trepidation. I fear I may be letting the proverbial camel get his nose under the tent. Will the corporate and insurance lobby later try to extend such special protections to all aspects of personal injury liability? Will they try to make those protections permanent? You betcha.
How do I know? Defendants in products liability have already been making these kinds of arguments for years. They argue that their compliance with government regulations should get them off the hook for their negligence. In other words, they argue, “how can we be held liable if we did everything the government told us to do”? To be fair, plaintiffs’ lawyers always argue the reverse, that non-compliance with a government standard is proof of negligence. Corporate defense lawyers simply argue that what’s good for the goose is good for the gander. That’s all well and good, and it is fair to argue that compliance with a government standard is some evidence of non-negligence. The question is whether such compliance should be conclusive of non-negligence. That’s what corporate defendants argue. And I am actually proposing that we allow for a temporary law that does just that regarding coronavirus liability.
Generally, corporations should not be allowed to hide behind minimal governmental standards to avoid liability. A jury, who hears all the evidence of what additional safety protocols could have been installed and how much they would have costed, should be allowed to decide whether the company was “negligent”.
That being said, even without coronavirus lawsuit immunity, personal injury lawyers like me would have a hard time proving a particular restaurant or retail store was liable for spreading the virus to our clients. How do you prove the client got the virus at a particular store or restaurant when the virus is just about everywhere? So by “giving up” coronavirus lawsuits, personal injury lawyers like me are really giving up almost nothing. We are giving up very little to give a shot in the arm to America’s sickened restaurant, retail and gym businesses.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.