Senate GOP rolls out extensive Covid-19 tort-liability shield
For months, the debate has been coming to a boil: To what extent should a business, hospital, or other open-to-the-public entity be exposed to Covid-19 related tort liability?
Republicans have predicted a wave of litigation and called for creation of an affirmative defense. Democrats have been lukewarm at best.
The first draft of the GOP’s SAFE to Work Act is extensive, detailed, and nearly air-tight. It purports to create an exclusive and extremely narrow cause of action for Covid-19 related injury, preempting state common law negligence claims.
In pertinent part, it reads as follows:
Notwithstanding any other provision of law, and except as otherwise provided in this section, no individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any coronavirus exposure action unless the plaintiff can prove by clear and convincing evidence that:
- in engaging in the businesses, services, activities, or accommodations, the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus;
- the individual or entity engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and
- the actual exposure to coronavirus caused the personal injury of the plaintiff.
The SAFE to Work Act goes on to clarify that no individual or entity shall be held liable in a coronavirus exposure action for the acts or omissions of a third party, unless (1) the individual or entity had an obligation under general common law principles to control the acts or omissions of the third party; or (2) the third party was an agent of the individual or entity.
Punitive damages may not exceed compensatory damages. Joint-and-several liability is limited to certain circumstances, with courts being required to apportion liability where several defendants are sued. The collateral source rule (i.e. disregarding insurance compensation) will not apply, and any payments received by the plaintiff will offset recovery.
The Act also provides for automatic removal to federal court of any coronavirus exposure action, upon request by any defendant. A plaintiff must plead the claim with particularity, and must also plead all places and persons visited by the person and all persons who visited the residence of the person on whose behalf the complaint was filed during the 14-day-period before the onset of the first symptoms allegedly caused by coronavirus. The complaint must be verified (i.e., sworn under oath) and accompanied by an affidavit of a physician who did not treat the plaintiff, who verifies the injury.
No discovery will be permitted until the court has had an opportunity to rule on any motions to dismiss. There being fertile grounds for motions to dismiss, the SAFE to Work bill adds an immediate right to appeal a denial of such a motion.
A defendant will wield a sword (in addition to its shields) where it incurs money to defend or respond to a meritless demand letter. And then the prevailing party on such a claim is entitled to attorney’s fees.
If this becomes law, is there a weakness that plaintiffs may exploit? Yes, but it would require the heavy lift of a interstate-commerce defense.
Overall, the SAFE to Work Act was written to eviscerate existing state tort laws. While the tea leaves may indicate a Democrat acquiescence to some sort of a shield, it is unlikely that a bill as defendant-friendly as this would become law.
I will be monitoring the status of these developments over the next few weeks, along with my colleague Spencer Krebs. Contact me at [email protected].