Another Assault on Your Legal Rights
Covid-19 has had a terrible effect on the nation. Over 120,000 Americans have died. Tens of millions have lost their jobs. And the pandemic is still very much with us.
It has had another harmful effect, too. Using the virus as the justification, businesses are working as hard as they can to strip Americans of the protection of the law.
Sound exaggerated? Let’s take a look.
When confronted with surging numbers of patients during the epidemic, many hospitals and nursing homes sought protection from claims for injuries arising out of the care they delivered. They wanted immunity from liability, even though many experts thought that their fears were unfounded, or at least overblown. And despite our opposition (see the open letter we sent to the President and Congress), many states gave this immunity to hospitals, nursing homes and health care workers. Recent articles have demonstrated why this was a bad idea, which has caused problems. See, for example, “As Nursing Home Residents Died, New Covid-19 Protections Shielded Companies From Lawsuits. Families Say That Hides The Truth,” Washington Post, June 8, 2020. Indeed, NBC news is now reporting that Connecticut Governor Ned Lamont is considering lifting this grant of immunity when it expires in September. “Lamont Considers Ending Immunity For Nursing Homes,” June 19, 2020.
In the meanwhile, however, other businesses, including hairdressers, have been requiring their customers to sign releases, giving up their rights to sue if they become ill while patronizing the salon. And President Trump reportedly required attendees at his rally in Tulsa Oklahoma to sign similar waivers.
Whether someone who was stricken with Covid-19, either in a nursing home or hair salon, could actually win a lawsuit is not as important as this dangerous tactic of eliminating people’s legal rights from the outset. We have a legal system and trial by jury for resolving just such issues. By preempting any chance at taking wrongdoers to court, these grants of immunity and legal releases remove incentives for businesses to act responsibly and protect the wellbeing of their patrons.
Recently, another front in the war on accountability has opened. The New York Times headline from June 12 expresses it succinctly: “In Fine Print, Airlines Make It Harder to Fight for Passenger Rights.” NY Times, June 12, 2020. American Airlines and British Airways have recently adopted policies prohibiting class actions. As the Times noted,
The timing hardly seems coincidental. Airlines of all sizes are being sued for withholding billions of dollars from passengers whose flights were canceled because of Covid-19. American Airlines was named in a class-action lawsuit in April; a similar one was filed against British Airways in early May. Also in April, separate but similar class actions were filed against the low-cost carriers Frontier Airlines and Spirit Airlines, both of which had “No Class Action” clauses in their contracts of carriage before the coronavirus was declared a pandemic.
So, why is this important?
Much like cellphone contracts, airline agreements are adhesion — otherwise known as “take it or leave it” — contracts. Passengers cannot individually negotiate the terms, or cross out certain sections, before purchasing a plane ticket or signing up to earn miles.
It is exceedingly difficult for individuals to sue airlines in the United States, even in small-claims court. Class-action lawsuits, which represent a large number of people with similar complaints, are among the only tools available to consumers to get financial restitution against airlines.
In practice, these changes, if upheld against court challenges, may deprive consumers of effective legal rights.
“The courthouse door is not locked, but airlines are exempt from state laws and local laws, which account for the vast majority of consumer laws,” said Paul Hudson, the president of FlyersRights.org, an airline-passenger consumer-advocacy nonprofit. “So even if your problem violates a regulation, that doesn’t give you any individual relief. It just means the airline might get fined or admonished.”
As a result, these changes implemented by American Airlines and British Airways, will serve as significant barriers to consumers seeking to enforce fair treatment.
Covd-19 has changed most aspects of life in this country, from the terrible death toll, to the massive unemployment, to social isolation and distancing. We must remain vigilant to see that our legal rights are protected, not eroded as we endure the other costs of this pandemic.
You can help in this battle to protect our rights:
- Share this article with your friends. Education is important.
- Write to your elected representatives, at both the State and Federal levels, and urge them not to shield businesses from liability when they harm people.
- Join consumer protection organizations.