ABSTRACT
Among possible legal responses to a pandemic, quashing tort liability might seem startling. Common sense indicates that a deadly and debilitating disease would call for possible tort liability, to enable recovery for losses by those subjected to the disease because of others’ carelessness while also discouraging careless conduct that could lead to preventable cases illness in the first place. Yet, when faced with SARS-CoV-2 and COVID-19, the life-threatening disease caused by the virus, the first response of many American lawmakers was to enact, or attempt to enact, COVID-19 ‘liability shield’ statutes. These laws introduced doctrine to eliminate or narrow grounds for tort claims against those who caused others to contract COVID-19.
As it turns out, the COVID-19 liability shields have an extensive pedigree in the American law of torts. In this article, I review the steady introduction of what I call ‘eliminative’ tort doctrines, especially the wave of them dating back to the 1970s. Individually and together, these doctrines sharply reduce the grounds for personal injury claims, burden the injured’s ability to prevail in permitted claims, and restrict the recovery available even when such claims succeed. Eliminative tort doctrines appear in both federal and state law and apply in a variety of factual circumstances. I maintain that existing eliminative tort doctrines facilitated the rapid promulgation of intricate, detailed COVID-19 liability shield statutes …
Feldman, Heidi Li, From Liability Shields to Democratic Theory: What We Need From Tort Theory Now (November 15, 2021). 14 Journal of Tort Law, issue 2 (2021 forthcoming).
First posted 2021-12-16 11:00:52
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