Indiana Law Journal

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96 Indiana Law Journal Supplement 66 (2021)


The Covid-19 pandemic set off a public health emergency that quickly brought doctors and other health care providers to the front line, while shuttering businesses throughout the United States. In response to the emergency, the federal and state governments rapidly created broad protections from tort liability for health care providers. To encourage businesses to reopen, some states have also provided liability protection for businesses from personal injury suits brought by patrons and employees. Congress is considering similar protections for businesses as it contemplates further aid packages. Some industries, like nursing homes and universities, are lobbying for specific immunity. This Essay overviews some of these liability shields, examines their relative necessity and value, and anticipates some of the issues that will inevitably arise as the provisions are implemented.

Part I briefly explains that, even without liability shields, potential plaintiffs face high hurdles under traditional common law principles to successfully bring personal injury lawsuits for Covid-19 related injuries. Proof of the elements of negligence and overcoming traditional defenses will be difficult, whether suit is brought against businesses, health care workers, or employers. These common law obstacles call into question the need for further liability protections.

That said, the strongest case for liability shields is for health care workers–those who are on the frontlines of the battle against the pandemic. Part II reviews the shields that have been promulgated for these workers both at the state and federal levels. While Part II concludes that these shields serve health care policy, it questions whether similar protections should extend to treatment of non-Covid-19 patients, as is being advocated by the American Medical Association.

Parts III and IV consider whether the need for immunity for businesses is comparable to health care workers. These Parts conclude that providing immunity to businesses is counterproductive and detracts from important values served by tort liability: Part III from the perspective of suits against employers and Part IV from the point of view of patron suits against businesses open to the public. Preliminarily, it is debatable whether immunity shields are even necessary. Lawmakers assume these shields are critical to encouraging businesses to resume normal business activities, an assumption that is not supported by the data. It is likely that other challenges facing businesses in the pandemic, such as reduced business operations to allow for social distancing or lower patronage due to public fear of exposure, may be inhibiting resumption of full business activities far more than the potential for liability. Significantly, very few personal injury lawsuits have been filed against businesses since the pandemic began in the United States.