Editor's Note: This column was co-authored by Robert Chernin.
The current pandemic has set the stage for litigation of epic proportions. In response to COVID-19, many manufacturers and retailers rushed products to market with far less than normal levels of testing and quality assurance. Medical professionals and facilities labored endlessly to handle floods of patients with skeletal staffs, while hospitals eliminated access to procedures deemed elective. And businesses have been forced to operate with an ever-changing array of new rules and guidelines.
Even with the greatest level of care, mistakes are inevitable under such circumstances. A phalanx of lawyers stand at the ready to blame every bad outcome on someone with deep pockets. All too often, they hurt families who are comfortable but far from wealthy, small businesses forced to close, bigger businesses who must lay off employees and insurance companies that must raise rates for everyone. Tort lawyers are already salivating at the thought of suing those who helped America navigate the COVID emergency.
Without the protection of tort reform, many of those who tried to help America navigate this crisis will get sued, and those who risked reopening to feed their loved ones or their employees’ families will think twice before sticking their necks out in the future. Litigation run amok will punish the very risk-takers we need to reopen America. In the future, fewer companies will respond to emergency needs. Medical staff will pull back. Aggressive litigation targeting these Good Samaritans will erode our sense of community even further than it has been already. The need for tort reform is now greater than ever.
Today’s America has become frighteningly risk averse. We no longer trust our neighbors to behave responsibly. Instead, we relinquish our freedom to bureaucrats who restrain and punish those we think have harmed us. With the pandemic, we have allowed these same enforcers to divide our activities into “essential” and “non-essential” to suit their political ideology and personal views. Even in the face of a public health emergency, the willing suspension of our freedoms and civil liberties has been shocking. To make matters worse, as many of us rally around America’s founding ideals, pushing to reopen our communities and reclaim our freedom, we find ourselves hitting a brick wall of liability.
Liability is the central concept of tort law. A society needs to motivate its citizens to take reasonable precautions—to protect themselves, as well as those around them—while remaining productive. Toward that end, we draw a line between reasonable and negligent behavior. If your negligence leads to another person’s injury, we can and should hold you responsible. If you took reasonable precautions and someone still got hurt, the unfortunate responsibility is theirs alone.
This pandemic has also raised a number of issues that go straight to the heart of what it means to be an American. We clearly lack a consensus on issues like trust, freedom, personal responsibility, or the public welfare—critical concepts rooted in our views of risk and liability.
America must decide whether it wants to empower responsibility to foster good will or heap blame and vitriol upon those who tried to help. Looking ahead, the situation is just as murky. Businesses remain uncertain about the new standards of care. Offices will have to cope with employees who may feel uncomfortable leaving their homes or riding public transit. Should we encourage businesses to resume productive activity even if some workers and customers fall ill? Or should we restrain productivity because we can no longer tolerate risk?
These differing perspectives are symptomatic of radically different views of what it means to be an American. Are we still the nation whose people take risks and trust their neighbors? Or have we become a profoundly risk averse America whose people look to government for protection and compensation?
America must choose. Congress and state legislatures are already debating. Do we need liability shields to encourage emergency responders and economic activity? Or do we need liability swords to compensate all who suffer? Unsurprisingly, these debates have assumed a partisan hue. One side looks more favorably upon laws that encourage risk and activity, while the other prefers laws that compensate victims, with an ever-enlarging definition of who has been victimized.
Our nation was founded by risk takers. With a deep belief in their personal and religious freedoms, they ventured to a new land. Through all the risks they accepted and endured, they founded a new nation that for the first time in human history, based its governance in the concepts of freedom and responsibility.
The need for tort reform is critical. Easily lost amid the confusion of viral pandemics and the technicalities of tort reform is that they both point to the central question of our time: What do we want America to become? Whether America has the same appetite for risk that founded and forged a new nation is truly what lies in the balance.
Robert Chernin is the chairman of the American Center for Education and Knowledge (ACEK). Bruce Abramson, Ph.D., J.D., is a Senior Fellow and Director at ACEK and a partner at JBB&A Strategies, LLC.