The University of New Hampshire Law Review
Going Viral?: Discouraging the Premature Use of Civil Liability Strategies as a Response to COVID-19
In addition to the myriad of issues caused by the COVID-19 pandemic in the United States, the virus has also placed our legal system in a position of creating problems that can contribute to the spread of this pandemic. Despite the fact that the United States has been mired in the COVID-19 pandemic and vaccine strategies have been recently developed to provide protection from this virus, much is still unknown about the etiology of this virus and how to effectively control its spread. As a result, public health agencies at the federal, state, and local levels have only been able to issue guidance protocols and best practices that reflect current knowledge of the virus and how to combat the spread as opposed to public health mandates. Regardless, as individuals return to work and other non-health care businesses, those guidance protocols have taken center stage as the basis for lawsuits filed by these individuals challenging the COVID-19 health and safety practices of those respective institutions. These lawsuits call upon the judicial system to determine whether those evolving best practices and guidance should and can be used as a form of an enforceable “standard of care” and creates a significant opportunity for judges to legislate inconsistent and arbitrary social health policies from the bench. In a corollary fashion to these claims, there has also been an effort to provide protection from liability through the use of waivers and immunities to those who wish to conduct certain activities conducive to the spread of COVID-19. However, the use of waivers, assumption of risk doctrines, and immunities to protect businesses from exposure may ultimately lead to inconsistency in interpretation of those guidance protocols and also creates incentives to disregard those guidance protocols and best practices. In short, the premature use of the legal system through liability claims and immunities to address safety and health concerns by individuals and institutions trying to operate during the pandemic has the potential for contributing to the spread of this disease and caution must be taken to avoid setting a risky precedent in dealing with future public health crises.