On September 14, 2020, Governor Mike DeWine signed into law Ohio House Bill Number 606 (the “Act”). The aim of the Act is to shield businesses, schools, and first responders from many coronavirus-related civil lawsuits. To that end, the Act provides two types of immunity from COVID-19 related civil suits: 1) temporary civil immunity for health care providers; and 2) general immunity for businesses, public and private organizations, and individuals. The focus of this Client Alert is the latter category: the general immunity provisions of the Act.
What lawsuits are barred by the general immunity provision?
The Act bars most civil actions alleging COVID-19 related injury, death or loss. Specifically, the Act provides immunity from civil lawsuits for 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, COVID-19.”
Who is generally immune from COVID-19 related civil suits?
The Act’s general immunity applies to any “person”, which includes any individual, business, estate, trust, association, school, for-profit or non-profit entity, government entity, religious entity, or state institution of higher education.
Are there any exceptions to the general immunity provision?
The Act provides an exception from general immunity if the conduct underlying the suit was reckless conduct or intentional, willful, or wanton misconduct (“reckless conduct”).
In defining reckless conduct, the Act expressly states that government orders, recommendations or guidelines, such as orders from the Governor, the Director of the Ohio Department of Health, or local boards of health, do not create a duty of care and that a presumption exists that such orders are not admissible as evidence to establish that a duty of care existed. The legal impact of such orders, and possible consequences for violations of those orders, should be separately analyzed. The failure to include such orders in establishing a duty of care for civil suits does not create an exemption from other applicable laws.
Are COVID-19 related class actions permitted?
The Act prohibits all class action lawsuits against businesses, organizations or individuals that allege liability for damages caused by COVID-19. This is true even in cases that allege reckless conduct which would otherwise be exempt from general immunity.
Is COVID-19 the only type of coronavirus covered?
The Act’s general immunity is not limited to suits related to COVID-19. In addition to COVID-19, the Act’s general immunity provision applies to civil suits related to the coronaviruses MERS (MERS, CoV, or Middle East respiratory syndrome) and SARS (SARS-CoV, or severe acute respiratory syndrome), as well as all mutations of the MERS, SARS or COVID-19 viruses.
What is the timeframe for general immunity?
The Act’s general immunity applies to conduct occurring from March 9, 2020, the date Governor DeWine declared a state of emergency in Ohio due to COVID-19, through September 30, 2021. The legislation takes effect 90 days after the Governor signed it; however, because the law applies retroactively to March 9, 2020, the delayed effective date should have little, if any, practical impact.
What do you do if you have questions about the Act?
This Client Alert is intended for informational purposes only and is not legal advice. We encourage you to call your SMDK attorney if you have questions about the Act, the risk of litigation related to COVID-19, or any other concerns.