Instead of Liability Waivers, Reduce the Spread of Covid-19

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By Professor Jeff Sovern

Congress can take a simple step to reduce the spread of the coronavirus. All it has to do is enact legislation providing that Covid-19 liability waivers are not enforceable.

Let me explain how through an example.

Hundreds of thousands of students have just moved into dormitories at their colleges and universities around the country. One study found that a way to reduce the spread of the virus is by testing students every couple of days. Yet not only have very few colleges adopted that strategy, many did not require entering students to take even one test unless they were symptomatic—even though many young adults have had the virus without symptoms.

Some colleges instead established a new prerequisite that will protect the schools even though it won’t help students: before students can be on campus, the schools required students to sign agreements that cut off a student’s right to sue if the student gets Covid-19 because of the school’s own blunder.

Colleges are not unique in imposing this requirement. The president’s campaign famously did the same. No doubt many lawyers are advising their business clients to follow suit. Even my eye doctor insisted I sign a liability waiver.

But while Covid-19 liability waivers may be useful to the businesses they protect, they are terrible for society at large. It is one thing for a ski resort to extract an agreement that it won’t pay if a skier breaks a bone because the resort made a mistake. Broken bones are not contagious. It is quite another thing for a university to say that if it negligently gives a graduate student the virus—maybe by failing to test a college student who may have it— the college is not accountable even if the graduate student unknowingly spreads it to dozens of others.

Private contracts should have no place when it comes to public health.

Businesses Need to Be More Careful

Courts make negligent people pay for the harm they cause in part to discourage careless behavior. But when a business secures an effective liability waiver, it doesn’t have to worry about being sued, and so can be cavalier about protecting its customers from the virus—especially as, during a pandemic, it can be hard to identify where you caught the virus.

During a deadly pandemic, we want businesses to be more careful, not less. Yet businesses can secure their freedom from the obligation to take care simply by having consumers sign a paper that the consumer may never even read.

Consumers aren’t the only ones who would benefit by outlawing virus liability waivers. Businesses will also be better off with greater accountability. Greater responsibility means fewer people getting sick, an earlier end to the pandemic, and businesses opening up sooner.

It also means parents can feel more comfortable sending their children to college, knowing that colleges will do their very best to reduce errors that sicken students because schools will be held accountable if they fail to do so. It means that careful businesses aren’t penalized because they can’t match the prices of competitors who cut corners on safety.

Unfortunately, Senate Republicans want to relieve businesses of liability for their own carelessness, whether or not consumers agree. Some states have already passed laws protecting businesses from the consumers they may fatally sicken with the virus. Their argument is that otherwise courts will be flooded with cases brought by ill consumers. But so far, consumers have filed only a fraction of the cases arising out of the coronavirus.

Instead, the real flood of cases is one of businesses’ own making: about a quarter of the cases filed in state courts consist of debt cases brought by businesses against consumers.

No doubt the same people who want to free businesses of accountability for sickening people would oppose the outlawing of Covid-19 liability waivers as an infringement on liberty. But practically no one reads contracts—not even consumer law professors. And if consumers do read them, they probably can’t understand them. A study I co-authored found that few consumers grasped the meaning of a clause that took away their right to sue in court.

In short, the liberty involved is almost certainly only that of the companies, not the consumers.

Covid-19 cannot be blocked by a signature on a piece of paper. Congress should make sure that the same is true of responsibility for spreading it. Otherwise, we will have lots of legal documents but more people will die of the virus.

Jeff Sovern is is co-coordinator of the Consumer Law and Policy Blog. Bloomberg Law originally published this story on October 13, 2020.