Source: Peggy Kirk Hall, OSU
The new law provides certainty that agricultural businesses won’t be assailed by lawsuits seeking damages for COVID-19. A person claiming harm from exposure to COVID-19 at an agricultural business will only be successful upon a showing that the business acted recklessly and with intentional disregard or indifference to the possibility of COVID-19. That’s a high evidentiary standard and burden of proof for a claimant.
It took five months of negotiation, but the Ohio General Assembly has enacted a controversial bill that grants immunity from civil liability for coronavirus injuries, deaths, or losses. Governor DeWine signed House Bill 606 on September 14, stating that it strikes a balance between reopening the economy and keeping Ohioans safe. The bill will be effective in 90 days.
The bill’s statement of findings and declaration of intent illustrate why it faced disagreement within the General Assembly. After stating its findings that business owners are unsure of the tort liability they may face when reopening after COVID-19, that businesses need certainty because recommendations on how to avoid COVID-19 change frequently, that individuals who decide to go out in public places should bear responsibility for taking steps to avoid exposure to COVID-19, that nothing in existing Ohio law established duties on business and premise owners to prevent exposure to airborne germs and viruses, and that the legislature has not delegated authority to Ohio’s Executive Branch to create new legal duties for business and premises owners, the General Assembly made a clear declaration of intent in the bill: “Orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency do not create any new legal duties for purposes of tort liability” and “are presumed to be irrelevant to the issue of the existence of a duty or breach of a duty….and inadmissible at trial to establish proof of a duty or breach of a duty in tort actions.”
The bill’s sponsor, Rep. Diane Grendell (R-Chesterland), refers to it as the “Good Samaritan Expansion Bill.” That name relates to one of the two types of immunity in the bill, a temporary qualified immunity for coronavirus-based claims against health care providers. In its original version of H.B. 606, the House of Representatives included only the health care immunity provisions. Of interest to farms and other businesses are the bill’s general immunity provisions, however, added to the final legislation by the Senate.
General immunity from coronavirus claims
The new law will prohibit a person from bringing a civil action that seeks damages for injury, death or loss to a person or property allegedly caused by exposure to or transmission of coronavirus, with one exception. The civil immunity does not apply if the exposure to or transmission of coronavirus resulted from a defendant’s “reckless conduct,” “intentional misconduct,” or “willful or wanton misconduct.” “Reckless conduct” means disregarding a substantial and unjustifiable risk that conduct or circumstances are likely to cause exposure to or transmission of coronavirus and having “heedless indifference” to the consequences.
Government guidelines don’t create legal duties
Consistent with the bill’s stated intent, the new law clarifies that a claimant cannot assert liability based on a failure to follow government guidelines for coronavirus. The law states that any government order, recommendation or guideline for coronavirus does not create a duty of care that can be enforced through a civil cause of action. A person may not admit such orders and guidelines as evidence of a legal right, duty of care or new legal cause of action.
No class actions