THE EXTRAORDINARY FORCE OF NATURE DEFENSE AS A DEFENSE TO CORONAVIRUS (COVID -19) PANDEMIC LIABILITY

The coronavirus (COVID-19) pandemic may result in the loss of billions of dollars by businesses due to litigation costs.¹ While a number of congressional leaders, such as United States Senator Mitch McConnell, have advocated for federal liability protections for businesses to be enacted through legislation,² the inaction of Congress on liability protection has left the courts in a position where the traditional defenses to negligence may be the only recourse for some defendants in cases involving liability as a result of the COVID-19 novel coronavirus. In cases involving claims by businesses for “business interruption” insurance coverage as a result of the COVID-19 related restrictions, insurers have asserted defenses based on insurance policy exclusions.³ Depending on the factual circumstances, comparative fault principles may apply to reduce and/or bar recovery for COVID-19 related liability claims,⁴ and the doctrine of assumption of risk may also apply,⁵ particularly in cases where a plaintiff may have voluntarily signed a COVID-19 liability waiver.⁶