The National Pulse
reopening america

The Freedom to Take Responsibility: Liability and Reopening America With Common Sense

America has endured challenges which were unknown before the start of this pandemic. States are on the verge of making very tough decisions about reopening America and letting people get back to work. No recovery will be perfect, and we can’t stay locked down forever. 

Business must re-open, albeit wisely. Children must eventually go back to school, albeit cautiously. Societies must come back together, albeit prudently. You can almost see the sharks circling. 

As the Wall Street Journal Editorial Board presciently wrote: “Millions of Americans will lose their jobs and tens of thousands will die from Covid-19. Leave it to the plaintiff bar to make money off the misery.”

But now is certainly not the time for this.

We are in a time in which healthcare providers are making difficult decisions in real-time.

“They shouldn’t be sued unless they are grossly negligent,” according to the Journal. The same is true for businesses. This is a time for America to get back on its feet, not for ambulance-chasers to be waiting in the wings for large-scale settlements. It’s time for personal responsibility.

Reopening America
Reopening America

Senate Majority Leader McConnell has called for liability protection as businesses begin to re-open their doors. He even went so far as to say that “[w]e can’t pass another bill unless we have liability protections. That’s the only way we’re going to ultimately begin to get past this.”

Perhaps this pandemic has presented the perfect time for tort reform?

Bradley Blakeman laid out a compelling argument for it, writing: “[i]t’s unfair for governments and businesses to bear the burden of liability for policies made in good faith to remediate or prevent further harms much greater to their populations and customers than if such policies are not made and instituted at all.”  Therefore, he added: “Coronavirus tort reform litigation legislation is needed — now.”

In his book The Death of Common Sense—How Law is Suffocating America, Philip K. Howard addresses how law and lawsuits have permeated every area of society to un unhealthy degree.

He writes: “[a]voiding legal risk becomes our goal. We pause, we worry, we equivocate, and then we divert our energy into trying to protect ourselves.  Responsibility is preempted by law.” And in the present case, responsibility may be preempted by the threat of frivolous lawsuits by plaintiff’s firms who are likely ramping up advertising as this is being written.

It’s time for common sense. 

Insurance companies will have to step up and clarify the extent of their coverage. Businesses will have to use wisdom and caution. Patrons and everyday citizens will have to do the same. It’s time for everyone to take individual responsibility in order for us to collectively recover. 

As states begin to re-open, Americans will adjust to our brave new world.

But as Howard wrote: “America needs a new operating system. Instead of dragging every choice through legal mud, we need to pull law back into a framework that safeguards an open field of freedom… the freedom to take responsibility.” 

Aaron Hedden

Aaron Hedden is a 2020 National Pulse Writing Fellow