That is no time for junk litigation

This week the Alabama Senate passed law to protect businesses, churches, government agencies and others from civil litigation related to the transmission of Covid-19. That the bill sailed through on the first day of the real legislative business shows us how high it was on the agenda.

It’s the right law for where we are. Because corporations and other businesses struggle to survive the economic catastrophe of a global pandemic, they should not be the subject of litigation for which there is no conclusive science to legitimize claims.

Alabama has weathered emergency orders restricting companies to slow transmission and infection rates based on the best public health advice available. But we are all trying to accomplish a moving goal here as I write these words. Even in the medical and public health arenas, there is disagreement about exactly what best practices are needed and how long. We do not yet know much about the transmission of the various virus strains.

How can the courts hold a company that acts in good faith and complies with all local and state regulations liable for what cannot be definitively proven?

None of us can rule out every risk. Not for ourselves and not for others. It is an unfair burden to ask a company or other body to do so.

The bill passed by the Senate does not give anyone a full free ticket to exit prison. If a plaintiff “provides clear and convincing evidence that the insured company caused the damage, injury or death through willful, reckless, willful or willful misconduct”, immunity does not extend to that business.

Is “clear and convincing evidence that the insured company caused the damage” a high standard? Yes, it is. And it should be.

Even the most cautious of us are likely to have contact with multiple environments and individuals each week. Let’s say you take very cautious, socially distant, and masked trips to the grocery store, and a small number of friends and family members interact with you on a regular basis. If you become Covid positive and suffer from it, then how can you isolate which of these exposures you contracted Covid for?

You can not.

And that’s the point. Almost none of us who were Covid-19 positive can say for sure where we got infected with the virus. We have theories, best guesses, etc. But in a world where asymptomatic cases are one thing, we don’t know. And it is unfair to evade compensation from a company or other entity that is acting sensibly without clear evidence.

Full Disclosure: I understand both sides of this issue. I am married to a litigator and have eaten many meals where consumer protection laws and civil liability were the founders of the feast. Businesses and other organizations need accountability, just like the rest of us. Without it, the desire to maximize profits or achieve goals can lead to practices that put others at risk.

But the pendulum swings too far the other way when we put the full burden of world security on those who – like most of us – are trying to do what is right and survive.

Entrepreneurs and churches have several ethical responsibilities. You certainly want to consider the physical security of your customers. But they also have employees who need the opportunity to work and earn an income. You have parishioners who desperately need the human interaction of coming together to be sane and sane.

Some of these companies or organizations offer important services and products that we all need to access, whether pandemic or not. Some are government agencies that provide services that are still needed on a daily basis.

Governor Kay Ivey has indicated his support for the measure should it pass through both houses. I hope the house approves it and sends it to their desk. Let’s cross frivolous Covid-related lawsuits off our list of things to worry about.

Dana Hall McCain writes about faith, culture, and politics for Follow her on Twitter @dhmccain for thoughts on this and more.

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