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Duff: Businesses (and Others) May Negligently Expose You to Coronavirus With Impunity

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If you work in the gig economy, you are not (or so the giggers contend) an employee and are, therefore, not entitled to workers’ compensation (among other employee rights).

Michael C. Duff

Michael C. Duff

The same is true if you are any other flavor of independent contractor. So, off you go to work in the intensifying pandemic. One day, your “not-employer” sends you out to clean coronavirus-infected surfaces, with no bleach and dirty rags. As a result, not only do you get sick, but anyone coming into contact with the “not cleaned” surface becomes sick.

So now I ask you: Should a reasonably prudent person know that you cannot send workers out to clean surfaces with no bleach and dirty rags without risking the health and safety of both those workers and customers (and other foreseeable human beings)? And if that person, nevertheless, sends those workers out with no bleach and dirty rags, would it be irrational for a jury drawn from the community to deem that act wrongful? Should a jury of our peers at least be permitted to assess the situation?  

Well, a bipartisan consensus (a "stimulus" bill that I think will predictably help all the wrong people) has emerged that will leave you, the sickened worker — or the customer coming in contact with the not-cleaned surface — with no remedy for your illness as a matter of law even if you could prove it was unreasonably caused by an actor not doing what a reasonably prudent person should do to avoid making someone sick.

You probably still can bring a claim if you can prove by “clear and convincing evidence” that the person making you sick was “grossly negligent,” but you will not be able to prove this, and the bipartisan consensus knows it. This is the wholesale elimination of all COVID-related causes of action for negligently inflicted harm. Compare Brown v. Merlo, allowing recovery under “guest statute” only for wanton and willful misconduct tantamount to elimination of negligence cause of action.

According to reports:

The bicameral, bipartisan compromise would provide $908 billion in aid and also shield businesses from coronavirus lawsuits for a few months to allow states to develop their own liability reforms. It falls between Senate Majority Leader Mitch McConnell’s $500 billion proposal and Democratic legislation of about $2 trillion.

Remember this treacherous act, my friends, for it is not “civilizational.” The bill not only strips historically grounded rights, it implicitly encourages states to strip such rights. I find that breathtaking.

You will be told that it is no big deal. Does it really matter if the Constitution is violated “just a little” (as I believe it is when you cut off all rights to a remedy for wrongfully caused physical harm) for a short period of time? I hold with this tenet:

Slight encroachments create new boundaries from which legions of power can seek new territory to capture. "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”

In the market for a bridge too far? Here it is. A Marbury v. Madison moment.

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.

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