Posted: July 24, 2020

As the country continues in the coronavirus pandemic, some re-opening businesses and gatherings are asking that people sign waivers relieving them of liability. Legislatures are also considering measures that would grant immunity to those who open shops or churches or recreational centers. But the idea of waivers and legal immunity are “bad ideas,” wrote Shanin Specter in a recent article published by CNN.

First of all, waivers that a person signs saying he or she won’t file suit -- such as those signed by attendees of a political rally held by President Trump in Oklahoma – are unenforceable in most states since that’s considered against the public interest, noted Specter. But beyond that, he opined that waiver forms send a wrong message. “It discourages reasonable care by owners and staff,” he noted. “It suggests that the business isn't operating safely. And it's a turnoff to an already jittery public.”

Specter also voiced opposition to immunity legislation as a “government blessing for bad behavior.” Not only does immunity, as with waivers, discourage due care by those who operate businesses and venues, but it also punishes someone who might contract the coronavirus because of another person’s negligence by denying them their day in court.

Instead, Specter suggests, businesses should employ safety messages that say something like: “We care about you, your family, our employees, and the public. We strive to obey the law and CDC (Centers for Disease Control and Prevention) guidelines. If you think we're falling short, please tell a manager."

Patrons also have a responsibility to follow the rules, to wear masks, wash their hands, keep at a distance from others, and speak up if they see a problem at a business. If you catch Covid-19 in a crowded bar, for instance, Specter noted that not only will the bar be responsible but the victim will also be “comparatively negligent” for putting themselves in a potentially dangerous situation.

“In the unlikely event a lawyer would take your case, a jury would be asked to compare your negligence to that of the bar. You'd likely be found mostly at fault and in the vast majority of states, you'd collect nothing because most venues bar recovery for plaintiffs whose fault exceeds that of the defendant,” Specter wrote for CNN.

However, he noted, a business that permits unsafe practices is subject to successful suit from those who catch the virus from a patron or employee and, “while it may be hard to prove causation, the possibility of a successful suit is real. So even if a campaign rally goer has no claim, his mom might.”

Specter’s conclusion on virus-related litigation: “The party that acts unreasonably must pay for the harm they cause. That's a critical principle in a pandemic, where the law must serve to deter yet more deaths and compensate victims of others' fault.”

The best practice is to avoid giving or getting the virus in the first place, and that can be done by simply following the rules, such as those promulgated by the CDC concerning social distancing, wearing face masks, cleaning surfaces and hands, and using common sense.

“If you run a business,” Specter wrote, “it's close to a sure thing that if you follow the rules you won't be successfully sued. Compliance with detailed government guidelines and laws is nearly always a successful defense. The law requires reasonable care, not perfection. If someone gets sick despite your reasonable care, liability is unlikely to follow.”