CL&P Blog

Instead of Liability Waivers, Reduce the Spread of Covid-19

by Jeff Sovern

My latest Bloomberg Law Insight piece. Excerpt:

No doubt the same people who want to free businesses of accountability for sickening people would oppose the outlawing of Covid-19 liability waivers as an infringement on liberty. But practically no one reads contracts—not even consumer law professors. And if consumers do read them, they probably can’t understand them. A study I co-authored found that few consumers grasped the meaning of a clause that took away their right to sue in court.

In short, the liberty involved is almost certainly only that of the companies, not the consumers.

Covid-19 cannot be blocked by a signature on a piece of paper. Congress should make sure that the same is true of responsibility for spreading it. Otherwise, we will have lots of legal documents but more people will die of the virus.

Timothy D. Lytton's Op-ed in The Conversation: Business liability shield is holding up another coronavirus bailout – . . . why immunity is unnecessary and even harmful

Here. Excerpt:

As I document in my 2019 book, “Outbreak: Foodborne Illness and the Struggle for Food Safety,” a handful of high-profile lawsuits against food companies have encouraged businesses at every link along the supply chain to improve their safety practices. That’s what happened after lawsuits against Jack in the Box over contaminated hamburgers in 1993 and Dole over E. coli in baby spinach in 2006.

Similarly, the prospect of liability for COVID-19 transmission is likely to encourage business owners to invest in cost-effective precautions, follow the advice of public health authorities, adopt industry safety standards and use common sense.

Congress Should Outlaw Contract Clauses Waiving Liability for Negligently Exposing People to COVID

by Jeff Sovern

That's the title of my post over at the ContractsProf Blog virtual symposium on contracts and COVID. Here's an excerpt: 

The argument behind liability waivers as to normal risks is that people should be able to arrange their private affairs as they wish, but COVID liability waivers are not purely private.  Virus liability waivers are very different from, say, a ski resort’s form disclaiming liability for negligently causing a skier a broken leg. A skier on crutches will not cause others to break their bones. When a business fails to take adequate precautions against infecting its customers with COVID, it increases the likelihood that not only the consumer but also others with whom the consumer comes into contact will be afflicted by the virus. Even if the consumer knowingly signed a waiver form—a dubious proposition that I discuss below--those others did not. Liability disclaimers that protect people in private contractual relationships in which others do not have an interest are a far cry from COVID liability waivers.

I look forward to the forthcoming posts from other contributors to the virtual symposium.

MCConnell's Orwellian attempt to block a non-existent tidal wave of litigation by consumers against businesses by contributing to a tidal wave that does exist--of cases by businesses against consumers

by Jeff Sovern

Not only does McConnell's coronavirus bill make it much harder for consumers to sue businesses that carelessly infect them with the virus, it also makes it much easier for businesses to sue consumers suffering from COVID. Suppose a consumer sends a letter asking for help with medical bills to a business that infected her with the virus, and says she won't sue the business if she gets that help. If she wouldn't have been able to bring a valid case because she couldn't satisfy the draconian standards established by the bill, the business can sue the consumer for compensatory damages (would there be any?), collect attorney's fees, and in some cases punitive damages. The consumer would be liable even if she never sued, but only sent a letter. That's under section 164. That will certainly give businesses that cavalierly sicken consumers a weapon in case the consumers want to seek help from the companies that injured them. How Orwellian for Republicans to pretend to prevent a tidal wave of litigation that doesn't exist while contributing to another--suits by businesses against consumers--that does.

The tidal wave of lawsuits is not consumers suing businesses--it's businesses suing consumers

by Jeff Sovern

The argument that businesses should not be liable to consumers whom they carelessly infect with the coronavirus is based on the claim that if Congress does not outlaw such cases, we will see a tidal wave of lawsuits. Thus far, that argument has no basis in reality. In fact, if anything, consumer claims are getting lost in the undertow. A recent Pew study found that the "[c]ivil caseloads dropped more than 18 percent from 2009 to 2017" even though "more than half of all U.S. households experienced one or more legal issues that could have gone to court. . . ."  But there is a tidal wave of litigation going on--only it's a tidal wave of businesses suing consumers. According to the same Pew study, the available data indicate that debt claims now "dominate" state courts, to the point that about a quarter of state civil cases consist of debt collection claims.  It looks as if businesses are winning the fight over access to courts while trying to create the illusion that they are losing.

McConnell bill would give businesses immunity from liability if they follow limited guidelines, all to avoid a flood of cases that don't exist

by Jeff Sovern

Politico has a summary of the McConnell bill here. It immunizes schools, colleges, charities, and businesses that follow public health guidelines from liability for negligently infecting consumers with the virus. But many public health guidelines are written in terms of what is feasible or possible, meaning that the entities subject to the bill could argue that protections are not possible or feasible (e.g., "Modify the alignment of workstations, including along processing lines, if feasible, so that workers are at least six feet apart in all directions . . . when possible . . . ."). Meanwhile, businesses justify the bill to prevent a flood of lawsuits that hasn't materialized. And it's not as if no one has been injured by the virus: more than 3.7 million Americans have caught the virus and more than 140,000 have died. Oh, and businesses have a long history of predicting floods of lawsuits that haven't materialized.  If businesses don't want to be liable for carelessness, they should simply be careful. For more specifically on immunity for universities, go here. 

How can businesses demand laws preventing liability for negligently infecting consumers with COVID when so many carelessly don't require employees to wear masks?

by Jeff Sovern

Businesses are lobbying to overturn laws that impose liability for negligently infecting customers with the coronavirus, claiming that they fear frivolous law suits and that they will observe heath guidelines to prevent the spread of the virus. But in fact, plenty of businesses are not even requiring employees to wear masks--and that's with laws the impose liability for negligently infecting customers. If businesses are so afraid of being sued for carelessly infecting customers, why aren't they simply being more careful? We can expect businesses to take even fewer precautions if they face no consequences for negligently getting consumers sick. Before businesses ask legislators to protect them from their own misconduct, they should first get their houses in order.

My Op-ed in The Hill: Should colleges be immune if they negligently infect students with COVID-19?

by Jeff Sovern

Here. Excerpt:

As colleges and universities attempt to persuade students that taking classes on campus is not risky, they are lobbying legislators to pass laws insulating schools from liability if people on campus become infected with COVID-19 due to the school’s own negligence. They shouldn’t be able to have it both ways.

* * *

An industry whose business model depends on convincing people that young adults will be safe with them cannot survive by hiding behind shields against liability for their own misconduct. Instead, universities should trumpet that people can have confidence that they will keep students safe because they will pay a price if they don’t — and then they should take every reasonable step to keep students safe. 

Consumer groups oppose colleges' efforts to get immunity for negligently infecting students with Covid-19

Here.

Comments to CFPB Conservative/Industry Taskforce Due June 1 During a Pandemic

by Jeff Sovern

As we previously noted, the CFPB's Conservative/Industry Taskforce created to make "recommendations for ways to improve and strengthen consumer financial laws and regulations" issued a request for information. Comments are due Monday, June 1. As far as I know, the deadline for commenting has not been extended, despite the fact that we are in a pandemic and there have been requests for an extension. I filed a very short comment complaining about the composition of the taskforce and that the deadline for the request for information is ill-timed. I urge readers of the blog to do the same. The body of my comment appears below the fold.