Since March of 2020, over 2,000 coronavirus-related liability cases have been filed across the nation. Businesses are being wrongly penalized for allegedly spreading COVID-19 to customers, despite following state and federal pandemic guidelines. These lawsuits have real implications, and multiple Californian restaurants are facing threats of claims already as a result of unfounded civil liability litigation. Current rulings indicate that businesses must prove that the plaintiff did not contract COVID-19 on their property – a task that is virtually impossible.
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There was a bill introduced to the United States Senate in 2020 ensuring business protection from unnecessary pandemic-related civil litigation, which Mitch McConnell and others in the last Congress strongly supported, but it never made it to the floor for a vote as part of the CARES Acts last year. No similar bills have been introduced by Congress this year.
Fortunately, State Senator Vince Leach introduced a bill – SB1377: Civil Liability; Public Health Pandemic – in the Arizona State Legislature to protect Arizona businesses from COVID-19 liability cases. The bill precludes liability for damages related to COVID-19 claims, during a public health pandemic declared by the Governor. The protections include a person or provider who acts in good faith to protect a customer, student, tenant, volunteer, patient, guest or neighbor, or the public, from the public health pandemic for injury, death or loss to a person or property from a claim that the person or provider did not protect the person making the claim from the effects of the pandemic. To achieve this goal, the bill raises the standard of proof from that of a reasonable person to clear and convincing evidence that the person or provider failed to act and the failure to act was the result of the person or provider’s willful misconduct or gross negligence. The bill also establishes a presumption that the person or provider acted in good faith if they adopted and implemented reasonable policies related to the pandemic. This is a very high burden of proof and is intended to reduce claims by attorneys, who understand that the probability of succeeding on the claim is much lower. The legislation must take this approach rather than eliminate these claims completely because the Arizona Constitution, Article 18, Section 6, prohibits the Legislature from preventing a citizen from bringing a cause of action against another citizen or entity. In order to withstand claims by attorneys bringing these types of suits, that the bill violates the State’s constitution, this is the only viable approach.
The pandemic civil liability bill would prevent excessive litigation and allow businesses and other entities to continue to operate with a much lower risk of litigation against them. Additionally, it will allow entities who receive a demand letter from attorneys seeking a fast settlement, to make the decision not to quickly settle to avoid the threat of expensive litigation knowing that the attorney is less likely to actually file a suit against them. The bill states that businesses that act in good faith to protect a person or the public cannot be penalized for alleged viral transmission.
The bill has a hearing in the House Committee of the Whole today. If it passes this vote, it then proceeds to a Third Read vote. If it passes it will then go to the Governor for his signature.
To read a Senate factsheet on the COVID-19 liability bill, please click here.
Government Relations & Regulatory attorney Alexis Glascock is of counsel at Fennemore.
