COVID-19 AND CIVIL LIABILITY FOR MY BUSINESS

COVID-19 AND CIVIL LIABILITY FOR MY BUSINESS

There are still many unanswered questions about COVID-19. However, Cohan PLLC is working with clients to look beyond the immediate pandemic response. Clients are now at the point where they are figuring out where they should go from here. One of the first issues clients raised while getting back into the office is the potential for civil liability.

Senate Majority Leader Mitch McConnell recently addressed this issue and explained his priorities for additional federal pandemic relief. He noted that “most importantly, to help the economy get back on its feet, liability protection” needs to be enacted. Senator McConnel is hopeful this could, “preserve hospitals, doctors, nurses, universities, colleges, K-12 from being hit with an epidemic of lawsuits on the heels of a pandemic.”

Members of Congress and the White House are still working towards a deal on a new relief package. This deal would theoretically include protections for businesses from trial lawyers who would like to file lawsuits blaming businesses for COVID-19 infections. Rather than wait, lawmakers in nine states have already enacted COVID-19 legal liability limits at the state level. 

Nevada – SB 4

On August 11, 2020, Nevada Governor Steve Sisolak signed Senate Bill 4 (SB 4) into Nevada law. The law grants legal immunity to certain businesses, nonprofits, and government agencies that follow Nevada health directives. Businesses will be immune from COVID-19 lawsuits as long as they don’t exhibit gross negligence. The full text of SB 4 is here. Below, we summarize the important rules and standards set by SB 4.

SB 4 has two main parts.  Sections 3-15 of the bill require the Director of the Department of Health to adopt regulations to reduce and prevent the transmission of COVID-19 in public accommodation facilities (think Hotels & Casinos). These regulations apply for the duration of the public health emergency due to COVID-19. These rules will continue for any other periods in which there are conditions concerning the prevalence of COVID-19. Essentially, the initial sections of SB 4 set forth a framework for minimum health and safety standards at Nevada hotels and certain other small businesses.

SB 4 Immunity from Civil Liability

Section 29 of SB 4 provides that certain businesses conducted for profit, governmental entities, and private nonprofit organizations are immune from civil liability for personal injury or death resulting from exposure to COVID-19 if they substantially complied with controlling health and safety directives. 

Section 29 also: (1) requires that the complaint in any such civil action to be pled with particularity; and (2) provides that such immunity does not apply if the business, governmental entity, or private nonprofit organization violated controlling health standards with gross negligence and the gross negligence was the proximate cause of the personal injury or death.

Thus, the second part of SB 4 essentially gives certain businesses immunity from civil liability if they meet these health and safety standards. Theoretically, it makes it less likely plaintiffs will successfully sue any “public accommodation facilities” in Nevada for COVID-19 related negligence. However, in practice, this puts a significant premium on compliance with unknown health and safety directives. Creative trial lawyers will look to exploit businesses who cannot adapt to this new normal.