A Private Property Society and COVID-19 Liability

I received several emails along the lines of these two questions relating to my post at EPJ, Mitch McConnell's Impressive Phase Four Bailout Plan:

Mark Addleman writes:

In Mitch McConnell's Impressive ... Bailout Plan, you write

I can also support widespread liability protection for restaurants, hotels, hospitals, universities and school districts (but not for coerced vaccines). In a private property society most assuredly almost all businesses and other institutions would operate under liability protection

 Can you go into your thinking here a little deeper?  Under some conditions, I can see how a PPS would confer liability protection while in others it wouldn't.  I think it would depend a lot on the particulars and, I believe, the protection would likely change as the society learns more about the effectiveness of prevention activities.  It doesn't seem obvious that PPS would "most assuredly" provide liability protection.

 RW response:

My post was referencing the here and now rather than some future point where the particulas are somehow different. In the here and now under current knowledge about the virus and protections, I would think that in a PPS most businesses would have a waiver relative to their property similar to what we have at baseball games, well when we actually had fans at baseball games, whereby you enter a baseball stadium with the express warning on the ticket that the baseball club is not liable if you get hit by a  flying bat or ball.

I just don't see under current conditions that a business owner would say "Hey, if you get COVID-19 and you were at my place of business and caught it there you can so my pants off." 

Again, this is in relation to the realpolitik of the here and now and Mitch McConnel's proposal not some situation where the conditions and knowledge with regard to COVID-19 are different.

At the post, The NAPSTER comments:

"I can also support widespread liability protection for restaurants, hotels, hospitals, universities and school districts (but not for coerced vaccines). In a private property society most assuredly almost all businesses and other institutions would operate under liability protection."

RW, could you expand on why you're in favor of the state coercively exempting suppliers from liability, and how this would arise in your PPS? I don't see it as a uniform principle in a NAP-based society.

RW response:

Well, in a PPS there wouldn't be state coercion. I made clear in the post that I was talking about the current situation:

From my perspective, no new COVID-19 bailout program should be implemented.

That said, under current political dynamics a new bailout phase is going to happen.

So I am looking at a bad situation and trying to understand how to make it less burdensome. It is not about favoring state coercion but rather IF there is going to be state coercion how can it be less harmful.

Allowing "widespread liability protection for restaurants, hotels, hospitals, universities and school districts" strikes me as something that is less burdensome and that would be close to what would emerge in a PPS.

As I mention above, I believe that most businesses, given current knowledge about COVID-19, would adopt a waiver on liability for catching the disease the same way baseball organizations limits liability if a fan is hit by a baseball or bat.

There may be a business in the here and now that might say, "We guarantee you won't get COVID-19 here and now and sue us if you get it" but I don't see that as a common practice at all. Frankly, I think it would be insane.

That said, if McConnell's liability protection passes, I don't see why a business couldn't say "Despite protection by the law, you can sue us if you catch COVID-19 while at our place of business."

I don't think many, or any, would adopt such a posture under current knowledge about COVID-19 but I guess it is possible.

McConnell's liability protection proposal strikes me as a way for legislation to get around, in the here and now, the possibility of a private-sector liability waiver that is challenged in the court given our current non-PPS system.

  -RW