Business Expectations & COVID-19 (Paul Keith Commentary)

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One of the things that comes with being an attorney is responding to legal questions posed by family. On May 29, I received the following text from my niece:

“This is Holly. Our softball league is concerned about being sued if someone gets COVID-19 while we are following the governor’s directive on team sports.There is even talk that we can be personally liable — even if they sign a waiver. Is there any cause for concern here?”

This is an Opinion

Holly’s question reflects an all too common misconception about our American system of justice — that our courts hold people liable even though they followed all of the rules and otherwise did nothing wrong. Of course, nothing could be further from the truth. Holly’s question also brings to the fore serious questions that face every business owner reopening in the wake of the COVID-19 pandemic. What is expected of me? What can I expect?

Through its Legislation Committee, the Arkansas Bar Association has explored the propriety of immunity from liability in court for the failure to implement common sense practices that are prescribed by government authorities to protect workers and others from the COVID-19 virus. As of this writing, no legislation has been introduced, but the Arkansas Bar Association is prepared to review the full impact on Arkansas families and businesses.

For at least 240 years, every American has had the right to recover in court his or her losses caused by the wrong or fault of another. The only exceptions to this basic American rule have been where the loss was caused by a government or a true charity organization, but even that immunity is disregarded where, for example, they have liability insurance in place to cover the loss.

This right of the injured to recover from the wrongdoer has been memorialized in our Arkansas Constitution: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.”

And the First Amendment of the U.S. Constitution guarantees the right of access to the court for redress of grievances — a clause that is generally agreed to provide the right to recover losses from wrongdoers.

This long-held belief that a negligent person should bear the costs of harm to another is being challenged in the wake of the COVID-19 pandemic. This rule is being balanced against the risk of “frivolous” or “unwanted” lawsuits. While no lawsuit is wanted, the issue of frivolous lawsuits presents a different question.

The law provides for imposition of penalties on folks who file a frivolous lawsuit, and on their lawyers too. A lawyer who signs a pleading based on a frivolous claim or without a basis in fact risks sanctions ranging from dismissal of the claim to discipline by the Supreme Court Committee on Professional Conduct. The law has long been in place to deal harshly with people, and their lawyers, who file frivolous lawsuits.

Arkansas families and businesses should note that immunity from suit will result in the denial of the constitutionally guaranteed right to have a jury decide whether someone was at fault in causing harm to another. Like anything else constructed by man, our jury system is not perfect, but it has served our country well for more than two centuries as a way to decide if someone did something wrong and to decide on the amount of the loss to be awarded to the one harmed.

Fundamental rights are at stake. These issues demand careful and serious debate. Nothing less will do. The people of Arkansas are faced with important decisions that could reach far into the future and touch many lives. Lawyers are uniquely situated to inform that debate from both sides. It is a mantle we take up with serious pride.

This is new territory for Holly and her softball league. And it is new territory for businesses reopening in the wake of the pandemic. If asked, my advice to them would be the same as it was to Holly:

“Holly, you can’t be held liable if you were not negligent. Following government guidelines is good evidence that you are not negligent. Exercise reasonable care. Now, play ball!”


Paul W. Keith, an attorney with Gibson & Keith in Monticello, will be sworn in as president of the Arkansas Bar Association on Friday.