by Timothy D. Lytton (Georgia State Law)
Conflicting signals from public officials about when and how to restart the economy following the COVID-19 shutdown hardly inspire confidence.
President Donald J. Trump has vacillated between entreating Americans to shelter in place and tweeting support for protesters demanding an immediate end to the shutdown. When Georgia Governor Brian Kemp announced that he was relaxing restrictions despite the warnings of public health officials, mayors around the state urged local businesses not to reopen and local residents to remain at home, notwithstanding the governor’s policy. The day after Governor Kemp’s announcement, President Trump publicly admonished him for moving too fast. A week later, the President pivoted again, when White House officials announced that he would be touring the country to advocate reopening the economy.
Adding to all the uncertainty, businesses that reopen too soon or without adequate precautions currently face the prospect of private lawsuits for facilitating the transmission of COVID-19. Surprisingly, the fear of being sued may actually help reduce the chaos created by the Trump Administration’s vacillations and conflicting federal, state, and local government policies.
In the absence of clear national leadership, a multitude of government officials are sending mixed signals based on competing models and ballpark guesses about what the future holds. When intensive news media coverage of overflowing hospital wards in New York City competes with coverage of street protests in Austin, Texas, public officials face political crosswinds which may be influencing their policy decisions, especially as election season heats up.
The prospect of lawsuits against businesses that open too soon or fail to take proper precautions to prevent the spread of COVID-19 is likely to focus business owners’ attention on exercising reasonable care to avoid liability for negligence. The various considerations that define the legal standard of reasonable care—cost-benefit analysis, emerging industry customs, public safety regulations, and common sense—applied in specific contexts by the people who know them best may make the reopening process more reflective and rational than if businesses rely solely on the changing or conflicting policy statements released by public officials.
Fears that liability exposure will lead to a flood of litigation are unwarranted. Legal claims will face considerable obstacles. One problem is the difficulty of establishing causation, given the uncertainty about many aspects of coronavirus infection and the complexity of disease transmission. Nevertheless, in some cases, contact tracing may offer sufficient evidence to show that a victim contracted the virus in a defendant’s place of business....
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