Both Sides in Debate on Tort Shields Claim Public Backing

Two polls show a polarizing — and inconsistent — view of how Americans view lawsuits against businesses in the wake of Covid-19.

A customer waits for his medication behind a sheet of plastic installed to help curb the spread of the coronavirus at a CVS pharmacy store in Morton Grove, Ill., on Tuesday. (AP Photo/Nam Y. Huh)

MANHATTAN (CN) — Against a brewing fight in Congress over whether companies should be shielded from coronavirus-related liability, special interests on either side of the divide released conflicting studies Wednesday that claim the American public strongly backs both positions. 

In a poll of 1,200 voters released Wednesday by the American Association for Justice, a group representing plaintiffs’ lawyers, nearly two-thirds of the public oppose giving businesses guaranteed immunity from coronavirus-related lawsuits. Hart Research Associates conducted the survey during the last week of April.

It found that nearly 4 out of every 5 Democrats, and 56% of Republican respondents, overwhelmingly oppose such safe harbors. Independents are against the proposal by nearly two-thirds, according to the new survey.

But the U.S. Chamber of Commerce put out a competing poll of 800 voters Tuesday, reporting that 61% of respondents supported congressional protections from coronavirus-related lawsuits. More than four-fifths of respondents said they would approve of liability safe harbors for restaurants and stores unless those companies were “grossly negligent.”

“As employers plan to reopen safely and sustainably, the last thing they need is to face a financially crippling lawsuit despite their best effort to comply with public health guidelines,” said Harold Kim, president of the chamber’s Institute for Legal Reform. “Any protections for employers should be targeted, timely, and temporary and that no business should be protected from lawsuits for gross negligence.”

The two polls have, predictably, established clear borders in the skirmish forming in the Senate.

“Different polls have been released this week with conflicting findings,” Jason Brewer, executive vice president for communications and state affairs at the Retail Industry Leaders Association, said in an email. “Retailers have made employee and customer safety their top priority since the onset of this crisis, and we believe the issue of frivolous torts is one that should be thoroughly considered by Congress in the weeks ahead.”

Trade groups are worried that lawyers are prepping an avalanche of torts against businesses. A survey released Wednesday by the National Federation of Independent Businesses found 70% of small businesses are concerned about Covid-19 lawsuits, while only 6% are unconcerned. 

The NFIB and other trade groups, led primarily by the U.S. Chamber of Commerce, have discussed various protections for companies, including changing evidentiary standards in court, regulatory safe harbors from legal liability, and forcing employers to exclusively use the workers compensation system for Covid-19 injuries. 

Senate Majority Leader Mitch McConnell, who called corporate liability protections from Covid-19 lawsuits a “red line,” is trying to inextricably tie such protections to the next stimulus bill. House Speaker Nancy Pelosi said Democrats will not budge on allowing it.

Linda Lipsen, CEO of the American Association for Justice, said the chamber and Republican lawmakers have tried to eliminate liability for businesses for decades. “McConnell has tried to immunize unreasonable corporate conduct for 45 years,” she told reporters during a conference call. “What the public really wants more than anything is to feel safe.”

The courts are already teeming with lawsuits related to Covid-19, primarily against cruise companies and nursing homes hit hardest during the pandemic’s early sweep through the United States.

One of the more high-profile cases, against meatpacking plant Smithfield Foods, got tossed just this past Tuesday in Missouri.

“Unfortunately, no one can guarantee health for essential workers — or even the general public—in the middle of this global pandemic,” U.S. District Judge Greg Kays wrote in the 24-page opinion.

Kays noted the plant required employees to undergo thermal screening and to complete a questionnaire, handed out ear-looped face masks, required workers to wear nitrile gloves and face shields, and paid for time off due to Covid-19 symptoms.

Tuesday’s poll found that 69% of voters believe granting businesses immunity is a “bad idea” as it would enable bad actors to skirt health guidelines. And 3 in 5 voters polled said giving such blanket protections could result in more citizens contracting the highly infectious disease.

Even some conservatives are leery about the idea of blanket liability protections for businesses.

In an op-ed published in The Hill on Wednesday, George Washington University Professor Jonathan Turley wrote that a general safe harbor from Covid-19 lawsuits is not likely a good idea.

“Many industries already are arguing for sweeping immunity protections from lawsuits alleging the contraction of the virus,” Turley wrote. “However, sweeping immunity laws can remove the incentive for businesses to take precautions.”

Turley suggested laws could be drafted to protect certain businesses if they post signs warning consumers they assume risk by entering, similar to hotel pools held blameless for drownings if they post similar signs and take certain precautions.

As lawmakers on Capitol Hill debate the issue, business carve-outs for Covid-19 liability could become a third rail politically for some Republicans.

“If you’re a senator running for re-election, if you go along with Mitch McConnell, those senators will be seen as putting the public safety at risk on behalf of special interests,” Geoff Garin, president of Hart Research. “There are a lot of very vulnerable Republican senators out there.”

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