Opinion: Let states lead on COVID-19 liability protections

Ross Marchand

As states cautiously begin to reopen, there’s no shortage of questions about how businesses will operate and interact with consumers during this “new normal.” Even as Michigan Gov. Gretchen Whitmer rejects reopening plans, Texas and Alaska (among other states) have decided on easing restrictions while limiting dine-in restaurant capacity to 25%. But capacity limits and hygiene standards are only the tip of the iceberg. When Michigan eventually follows suit, businesses in the state will understandably have concerns about liability in the case patrons fall ill. 

While federal lawmakers might be tempted to include sweeping liability protections in the eagerly awaited “Phase 4” of coronavirus relief, they ought to let states take the lead in preventing an avalanche of lawsuits. Along with many other states, Michigan has the legal tools to prevent liability chaos. Indeed, instead of one-size-fits-all liability limitations, lawmakers should let “cauldrons of experimentation,” such as Michigan, pave the way forward.

Since President Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law on March 27, lawmakers have been sparring nonstop over “what’s next.” And a month later, Senate Majority Leader Mitch McConnell kicked off a firestorm by stating, “My red line going forward on this bill is we need to provide protection, litigation protection, for those who have been on the front lines.” 

Senate Majority Leader Mitch McConnell (R-Ky.) has said liability protection for businesses will be a condition for states seeking additional funding for COVID-19 relief.

McConnell’s concerns are reasonable, as the last thing businesses want or need right now is getting sued for something beyond their control. Things could get tricky, though, if the federal government ties funding to states setting up narrowly tailored liability systems dictated by Washington, D.C.

McConnell seems to suggest conditioning funding on states enacting the “the kind of legislation that would provide liability protection to businesses and workers, and that’s fine. But when it comes to spelling out what kinds of liability protections would garner approval, the federal government should keep conditions broad. Tort law differs from state to state, and the last thing beleaguered businesses need now is a legal system bottlenecked by Washington, D.C., officials. In the end, it may be better to leave these decisions to the states entirely, with few strings attached.

After all, over the past several decades, promising innovations in state-level tort law have allowed state lawmakers to take note of best practices and avoid overly litigious systems. 

For example, in cases involving multiple wrongdoers, states have largely abandoned rules holding each defendant responsible for all of the damages (which led to defendants having to work out damages among themselves). States such as Michigan and Connecticut determine how much each party is to blame for the wrong committed against the plaintiff and assign damages accordingly.

Other states, such as Minnesota and Mississippi, force a defendant to shoulder all damages if they exceed a certain percentage of blame. It’s not immediately obvious which liability system is better.

One could argue that a Mississippi-style system shields smaller players from liabilities they cannot afford. But a lawyer from, say, Michigan could counter that the system in their state is fairer and more precise. There’s no federal way to divine which approach will fare better if and when shoppers sue multiple businesses for coronavirus-related negligence.

Moreover, some liability rules make sense in some states, but not in others. In a 2019 article for the Cleveland State Journal of Law and Health, for instance, Jason C. Sheffield notes, “Another increasingly common tort-reform measure are statutes imposing heightened qualifications requirements on expert witnesses. These statutes limits experts who may testify to the applicable standard of care in a medical malpractice case, usually by requiring that the expert and defendant share similar certifications and experience.”

Limiting the pool of expertise may seem like a no-brainer in Oakland County, Michigan, where advanced degree holders are a dime a dozen. But in other parts of the country, where this is not the case, such stringent requirements would create hurdles to having fast, fair trials.

McConnell is undoubtedly correct that businesses need liability protections during these uncertain times. But states must lead the way, not federal bureaucrats.

Ross Marchand is director of policy for the Taxpayers Protection Alliance and a Consumer Freedom Fellow at Young Voices, a nonprofit public relations shop providing pro bono media placement services to young conservative writers.