A public health framework for COVID-19 business liability.

"14: See Rae M. Lamb, David M. Studdert, Richard M.J. Bohmer, Donald M. Berwick & Troyen A. Brennan, Hospital Disclosure Practices: Results of A National Survey, 22 Health Affairs, Mar./Apr. 2003, at 73, 78 exhibit 3 (finding that risk managers at 77 percent of hospitals in a nationally representative sample cited ‘malpractice fears’ as the main barrier to disclosure of medical errors)."

"15: Under the Restatement (Second) of Torts, ‘a possessor of land’ is generally ‘subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety’. Restatement (Second) of Torts § 341 (1965). A ‘possessor of land’ includes a business that owns or leases its premises; an ‘invitee’ includes a business visitor (eg customer or employee). See id. §§ 328E, 332. The land possessor’s duty of reasonable care under the Second Restatement applies only when the possessor ‘should expect that [invitees] will not discover or realize the danger, or will fail to protect themselves against it’. Id. § 341. A land possessor’s duty of ‘reasonable care’ under the Restatement (Third) sweeps more broadly, and generally includes all entrants to land except for flagrant trespassers. See Restatement (Third) of Torts §§ 51, 52 (2012). Some states still follow the Second Restatement’s rule. See, eg Smith v. Smith, 563 S.W.3d 14, 17–18 (Ky. 2018). Others follow the Third Restatement’s approach. See, eg Ludman v. Davenport Assumption High School, 895 N.W.2d 902, 909–10 (Iowa 2017). 36: There is a long-running debate among tort scholars about whether—and to what extent—tort law successfully incentivizes potential injurers to take precautions at all. A number of studies supply evidence of a precautionary effect. See Gary T. Schwartz, Reality in the Economic Analysis of Tort Law: Does Tort Law Really Deter, 42 UCLA L. Rev. 377, 423 (1994) (reviewing literature and concluding that ‘there is evidence persuasively showing that tort law achieves something significant in encouraging safety’); Theodore Eisenberg, The Empirical Effects of Tort Reform, in Research Handbook on the Economics of Torts 513, 541 (Jennifer Arlen ed., 2013) (reviewing literature and concluding that ‘[e]vidence exists that changes in law that require actors to internalize costs can change behavior’). But cf. W. Jonathan Cardi, Randall D. Penfield & Albert H. Yoon, Does Tort Law Deter Individuals? A Behavioral Science Study, 9 J. Empirical Legal Stud. 567, 570 (2012) (noting that ‘[s]ome scholars have found limited evidence that tort acts as a weak deterrent with respect to certain behaviors’, while ‘others have found no evidence of deterrence or even, in a few cases, a negative association’).: To be sure, we can never know with complete confidence that a particular adjustment to the incentives generated by the tort system will yield a behavioral effect in the direction that economic theory predicts. But especially in a pandemic, policymakers do not have the luxury of waiting for certainty before acting. We submit that economic theory—bolstered by empirical evidence from other contexts in which incentives do appear to shape behavior—can provide a useful guide for policy even when that guidance is caveated by some uncertainty."