Login | November 26, 2020

Ohio law creates immunity for biz against most COVID-19-related suits

SHERRY KARABIN
Legal News Reporter

Published: November 20, 2020

If a customer slips and falls in a supermarket immediately after someone standing alongside him/her drops a soda on the floor, the company is generally protected from liability. But what if a customer contracts COVID-19 from another shopper or an employee, could the business be held liable?
That’s exactly the question that a new Ohio law is designed to answer.
As Harrington, Hoppe & Mitchell attorney Patrick Manning explains Amended Substitute House Bill No. 606, signed into law by Gov. Mike DeWine on Sept. 14, provides large-scale immunity to employers, healthcare professionals and schools from most civil lawsuits related to the exposure, transmission or contraction of COVID-19.
“A lot of businesses and organizations that are reopening are concerned that they could be sued by an employee or customer who gets sick,” said Manning, who works out of the Youngstown office and focuses on civil litigation, employment and public sector law and personal injury cases.
“The law acknowledges that the uncertainty and developing science around the novel coronavirus have created confusion for businesses in terms of what measures they should take to protect their workers and customers,” said Manning.
“The new law seeks to make it clear that the various public health orders related to the pandemic issued by federal, state and local governments and agencies have not created any new legal duties for businesses, nor have they created any new causes of action for potential claimants in terms of tort liability.”
Section 2. (A) of the new law states, “No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.”
Brouse McDowell partner Elizabeth Schultz Yeargin said the law is designed to define the standards under which an entity can be held responsible if an employee or customer is exposed to, transmits or contracts COVID-19.
 
“Given that the number of pandemic-related lawsuits is rising across the country, a lot of our clients, especially those in the manufacturing and retail sectors have been raising concerns about their potential exposure to lawsuits,” said Schultz Yeargin, who serves as co-chair of Brouse McDowell’s Business Transactions & Corporate Counseling Practice Group.
“The new law states that persons are immune from being sued unless the plaintiff can demonstrate that the entity committed a reckless act in which it was indifferent to the consequences of the act or took a substantial and unjustifiable risk that led to exposure or contraction of the virus or acted with willful or wanton misconduct,” said Schultz Yeargin.
Persons include schools, for-profit, nonprofit, government and religious entities and state institutions of higher education.
“Ohio law traditionally provides that a person owes a duty of ordinary care to customers and guests,” Schultz Yeargin said. “The new law clarifies that a government order such as a mask mandate does not create a duty of care for a person such as a shopkeeper or restaurant if they do not follow the recommendation. Even if a government order is not enforced by a business or healthcare provider, the order is not admissible as evidence in a lawsuit that a duty of care has been established.
“The law also provides temporary limited immunity from claims for liability against healthcare providers, including emergency responders and home health aides who provide healthcare services in response to a disaster or emergency, that arise from an act or omission in providing, withholding or withdrawing those services, a decision related to providing, withholding or withdrawing those services and compliance with an executive or director’s order during declared disasters or states of emergency,” she said.
“This provision does not apply in tort cases where recklessness, intentional, willful or wanton misconduct is involved or in a professional disciplinary action involving a provider’s gross negligence,” said Schultz Yeargin.
In addition, she said the law prohibits individuals alleging such liability from bringing class action lawsuits against businesses, healthcare professionals and schools, even in cases where the immunity does not apply.
“The law places an emphasis on protecting healthcare workers and first responders, particularly given the chaos and uncertainty that’s resulted from having to deal with a new and mysterious virus,” said Manning.
The new law takes effect on Dec. 13 and applies to acts, omissions, conduct, decisions or compliance dating back to March 9, 2020—the day the governor issued his executive order declaring a state of emergency due to COVID-19--through September 30, 2021.
“The new law helps put the minds of professionals such as educators, proprietors, and healthcare providers a bit more at ease as they attempt to continue to operate during unpredictable and unchartered circumstances,” said Schultz Yeargin.
While the law may shield many entities from lawsuits, Manning said it’s not a substitute for having clear and consistent COVID-19 policies in place.
“Employees and customers need to know and understand their responsibilities and employers need to have protocols in place should someone test positive, be exposed to the virus or develop symptoms while on the job,” said Manning. “You don’t want to have to think on your feet or try and put the ketchup back in the bottle after it was spilled.”



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