Tort Immunity in the Pandemic

96 Ind. L.J. Supp. 1 (2020)

23 Pages Posted: 8 Nov 2020

See all articles by Betsy Grey

Betsy Grey

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Samantha Orwoll

Arizona State University (ASU), Sandra Day O'Connor College of Law

Date Written: November 5, 2020


A fundamental premise of our common law tort system is that the risk of liability will help deter unsafe behavior. Yet, as we continue to battle the COVID-19 pandemic, proposals abound to shield businesses from tort liability. Politicians have even conditioned fiscal-stimulus for our ailing economy on passage of tort liability shields. This essay examines the pros and cons of such shields, and concludes that their questionable benefits do not justify loss of the deterrent value of tort liability. Although businesses would surely prefer to avoid lawsuits, those that act reasonably--even without tort immunity--face little risk of damage judgments and would be hard prey for plaintiff personal-injury lawyers. To be found negligent, businesses would need to flaunt such basic precautions as social distancing, gloves, masks and disinfecting measures. Presumably, we should not encourage such behavior by removing the tort system’s incentives to operate safely. And even if a business arguably could have done more to keep their customers and employees safe, plaintiffs would still have the tall burden of establishing causation--that they caught the disease because of the defendant’s neglect as opposed to other sources. Beyond all that, businesses already enjoy the protection of workers’ compensation laws, and strong defenses like regulatory compliance. On the other side of the equation, creating immunity shields may signal to employees and customers that they return to work or patronize business at their own peril--creating an anxiety that undermines the trust and confidence we want to instill to restart of our economy. Finally, other systems, such as insurance and government compensation funds, can be used to encourage businesses to reopen and stay open.

Keywords: Torts, Personal Injury, Immunity, Worker’s Compensation

Suggested Citation

Grey, Betsy and Orwoll, Samantha, Tort Immunity in the Pandemic (November 5, 2020). 96 Ind. L.J. Supp. 1 (2020), Available at SSRN: or

Betsy Grey (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

Samantha Orwoll

Arizona State University (ASU), Sandra Day O'Connor College of Law

Box 877906
Tempe, AZ
United States

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