Pandemic Harms and Private Law's Limits: A Proposal for Tort Replacement
14 Pages Posted: 12 Jan 2024 Last revised: 8 Feb 2024
Date Written: January 9, 2024
In the early days of the COVID-19 pandemic, many predicted a flood of tort litigation against commercial businesses brought by consumers alleging negligent exposure to the virus. Although these negligently-caused injuries almost certainly occurred, the predicted flood of litigation never materialized. Along with various state-imposed liability shields for businesses, the private law of tort itself also proved a formidable barrier to potential plaintiffs, particularly given the difficulty of establishing causation in this context. This absence of tort suits no doubt helped businesses, ranging from residential health care providers to restaurants, as well as the economy and social life more generally. But the dearth of claims almost certainly left a great number of negligently-injured parties without recourse or compensation to address their devastating harms.
We propose that a publicly-administered tort-replacement scheme could have served negligently-injured victims who otherwise received no compensation without sacrificing (much of) the deterrence that tort law, albeit imperfectly, often provides. In other words, with appropriate regulation, tort replacement can address the twin goals so commonly associated with private law tort: compensation and deterrence. This chapter reviews past instances of the government replacing the private law of tort with a publicly-administered system to address analogous problems to those raised by the COVID-19 pandemic. Recognizing that this pandemic will not likely be the last pandemic to raise these concerns, we can learn from this history.
After a brief introduction, this chapter explores in Part II the limits of applying private tort law to the COVID-19 transmission context, limits we suggest could apply to future pandemics and other emergencies more generally. Part III reviews past examples of the government replacing private tort law with a publicly-administered compensation system. Part III.A. highlights two instances in which tort replacement was used primarily to facilitate access to compensation, whereas Part III.B. highlights instances in which tort replacement was used to prevent a flood of litigation. Taken together, these examples suggest that replacing tort (rather than loosening doctrinal barriers to recovery in court or erecting new ones in the form of liability shields) was the right solution in this context. Part IV considers objections, and Part V concludes.
Keywords: tort law; compensation; COVID-19
JEL Classification: I13, K13
Suggested Citation: Suggested Citation