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Dec. 10, 2020, 9:51 a.m. EST

Businesses don’t need special immunity from coronavirus liability — Mitch McConnell is wrong about a coming ‘avalanche’ of ‘frivilous’ lawsuits

‘Reasonable care’ sets a clear standard that protects business owners

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By Timothy D. Lytton

Getty Images
Puckett's Grocery & Restaurant in Franklin, Tenn., has reopened under state rules limiting it to 50% capacity with social distancing.

Congress may be close to a deal on another coronavirus bailout, but Senate Republican demands for liability protections for businesses remain a major obstacle.

Senate Majority Leader Mitch McConnell has warned of an “avalanche” of lawsuits that will stymie economic recovery efforts if Congress does not grant companies sweeping immunity from civil liability for failure to adequately protect workers and customers from infection.

Read: Fight over workplace lawsuits trips up COVID relief — more than 100 organizations have lobbied on the issue

My research on the role of civil lawsuits in reducing foodborne illness outbreaks suggests that fears of excessive litigation are unwarranted. What’s more, the modest liability exposure that does exist is important to ensuring businesses take reasonable coronavirus precautions as they resume normal operations.

How not to be careless

As a general matter, businesses are subject to civil liability for carelessness that causes injury to others. The law defines carelessness as a failure to exercise “reasonable care.”

In applying this standard, courts consider several factors:

• Did the business take available cost-effective precautions to prevent injury?

• Did the business comply with laws or regulations designed to protect public health and safety?

• Did the business conform to industry standards for health and safety?

• Did the business exercise common sense?

If the answer to one or more of the questions is no, then a court may conclude that the business was careless and is subject to liability for damages to customers who suffered harm.

In the context of the current pandemic, I believe that reasonable care sets a clear standard for business owners. Invest in cost-effective precautions like ensuring employees wear masks and provide for social distancing. Follow the latest guidance of health officials and all health and safety regulations. Keep up with what other similar businesses are doing to prevent infection. Use common sense.

Law abiding, thoughtful business owners — those who care about the safety of their employees and their patrons — are likely to exercise reasonable care to prevent COVID-19 transmission with or without the threat of a lawsuit.

For example, the owner of a nail salon in Georgia back in April described her plans for reopening . The salon will accept patrons by appointment only, conduct pre-screening telephone interviews for signs of illness, limit the number of people in the salon at any one time, take temperatures before allowing people to enter, require hand-washing, equip employees and patrons with masks and gloves, and sanitize all work areas between appointments.

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