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. 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, 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. Depending on the factual circumstances, comparative fault principles may apply to reduce and/or bar recovery for COVID-19 related liability claims, and the doctrine of assumption of risk may also apply, particularly in cases where a plaintiff may have voluntarily signed a COVID-19 liability waiver.
The era of the COVID-19 pandemic has been described as an “extraordinary” time. In the midst of such extraordinary times, is the “extraordinary force of nature” defense applicable as a defense to COVID-19 liability claims? This Article makes a contribution to the literature regarding the extraordinary force of nature defense as well as the emerging law review literature relating to the COVID-19 pandemic by analyzing the possible applicability of the extraordinary force of nature defense as a defense to COVID-19 liability claims.
