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State: Ntl. Duff: Are Liability Immunity and Personal Security Irreconcilable Ideas?: [2020-07-23] |
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I wrote in general terms back on June 10 about the “liability shield” that will probably be front and center in the debate over the next COVID-19 relief bill. Everyone is pretty clear about the immunity provisions it will contain. My gut tells me that the most feasible political solution may be a national pandemic program (regrettably, it looks like we may need a plan for future such outbreaks) akin to the National Vaccine Injury Compensation Program. But it is very important to remember that no compromise of this type, or like workers’ compensation, could ever occur without the default liability pressure of the tort regime. And the tort theory for liability is simple: It is not fair that those who benefit most from productive activity should pay an inadequate share of costs incurred by victims harmed by the activity. This is certainly true where those conducting the activity are negligent. In fact, if harm can be avoided by reasonable conduct, it should be. But under an “enterprise theory” of tort, it is also true when primary “activity beneficiaries” are non-negligent — if those beneficiaries are the moving, or initiating agents of the activity, and if the activity is sufficiently large in scope or scale. When the characteristic activity of a business involves a lot of “big stuff moving around,” we know darned well that we will have victims. Those conducting activity actuarially/statistically known to create risks of harm, even when all due care to prevent harm is exercised, should not be able to escape compensation for the harm caused simply because they (fortuitously?) failed to foresee a particular victim in a particular accident. This is a common justification for application of strict, or non-fault-based, liability. In any event, I think that strict liability, negligence and administrative schemes like workers’ compensation each recognize a core fundamental right of all persons to safety and security (remedies for harm are important, too, but as Greg Keating has forcefully argued, the core right is avoidance of harm, and post-hoc remedies for harm are always second best). Moreover, I — following, among others, John Stuart Mill — believe security to be the highest of absolute rights. In 1863, Mill wrote, in Chapter 5 of his influential work "Utilitarianism":
These may be words to remember as the citizenry is herded back to work (assuming there is any work). I cannot imagine the panic that could ensue if people experiencing sharply higher rates of COVID-19 disease resulting from (merely?) negligent business practices realize that all avenues of legal recourse have been cut off because they cannot prove those practices were the product of “recklessness” or “gross negligence.” Simply terrifying. Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission. |