The Future Of The Economy May Depend On An Ancient Doctrine Of The Past

By Tyler Durden Sun, 05/10/2020 - 16:20 Authored by Jonathan Turley

While some often seem to assume a zero tolerance approach for any risk of spread, we have no choice but to try to get this economy out of the current disastrous conditions.  Unless we want to reintroduce a barter economy, we need to stop the exponential growth of debt coupled with the perilous decline of employment.  The key may be individual choice and an ancient legal doctrine.

As pressure builds on states to open, many governors are starting to ease lockdown orders. That decision is not purely a public health matter but a public policy matter with interlaced issues of law, finance, and medicine. Congress and states must decide how legally to restart an economy in a world saturated by the coronavirus. With expensive recovery measures and a federal deficit projected at more than $30 trillion by the summer, we face a real possibility of a lost generation due to crippling debt and chronic unemployment. So this means businesses and institutions will need to operate in a way that is sustainable instead of just symbolic.

The legal challenge here is to open up the country fully when we cannot reasonably expect any vaccination program until next year, according to most experts. Thus, in the interim, our best hope may be an ancient legal doctrine that extends back to Roman law in the sixth century.

“Volenti non fit injuria” means “no wrong is done to one who consents,” and it became the solid foundation for what we know today as “assumption of risk.” The doctrine encapsulates the concept of personal responsibility and choice. Thus, any economic opening precisely requires not liability but choice.

But assumption of risk, which began as a doctrine in employment liability cases in the United States, has already been on the decline in this country. Assumption was an absolute defense, but most states have now adopted an alternative “comparative negligence” approach in which jurors assign the portion of responsibility of each party in their verdict.

If the plaintiff or the injured party is found to be 20 percent at fault, the award is reduced by that amount. Some states apply an additional rule that if plaintiffs are more than 50 percent at fault, then they are barred from any recovery. The problem for businesses in this pandemic is that every case presents different arguable facts as to who is more at fault from the spread of the coronavirus. Is it the individual or the establishment?

Strong defenses do exist, including factual causation where a plaintiff needs to establish that a particular location was the source. Indeed, it is difficult to imagine how someone could prevail against a business on the speculation that he or she contracted the disease from any single contact inside the business.

Yet states are adding different conditions and responsibilities that could fuel claims. There could also be a tsunami of litigation of strike lawsuits, cases brought with the intention of forcing a quick settlement, and even stronger liability lawsuits. If there will be a reliance on individual choice without the exposure to prohibitive litigation costs, then there is a need for uniform legislation on the state level and possibly the federal level.

Negligence can be wildly difficult to define in a world after a pandemic, where businesses are not being careless but must operate in a high risk environment. Any economic recovery needs to occur at a time when the majority of customers will be neither immune nor vaccinated against the disease. Businesses cannot question every group to determine if they are all family members or what each of their personal medical conditions are.

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