Published, March 2021
In the 2021 legislative session, Missouri legislators are tackling liability concerns brought on by the COVID-19 pandemic. Senate Bills 51 & 42, sponsored by Senator Tony Luetkmeyer, address whether various entities and medical providers can be liable if an individual is exposed to or contracts COVID-19 while participating in their businesses, services, activities, or accommodations. Senate Bill 51 creates a variety of new torts called “COVID-19 exposure actions.” Each of the below tort actions has a two-year statute of limitations.
Under the proposed legislation, an individual who was actually exposed to COVID-19 can bring a “COVID-19 exposure action” against an entity or individual only if they can prove two things. First, the entity or individual was engaged in reckless or willful misconduct that caused the injured individual to be exposed to COVID-19. Second, the actual exposure to COVID-19 personally injured that individual. Further, any individual who brings such a suit is presumed to have assumed the risk of contracting COVID-19 if the defendant entity or individual posted the following warning: “Under Missouri law, any individual entering the premises waives all civil liability against the individual or entity for any damages based on inherent risks associated with an exposure or potential exposure to COVID-19, except for recklessness or willful misconduct.”
Senate Bills 51 & 42 also create a “COVID-19 medical liability action” that requires a plaintiff to prove by clear and convincing evidence that (1) a health care provider acted with recklessness or willful misconduct, and (2) the plaintiff’s injury was directly caused by said recklessness or willful misconduct. Senate Bill 51 does not allow a COVID-19 medical liability action if the plaintiff’s injury stems from resource or staffing shortages.
Finally, Senate Bills 51 & 42 also provide for a “COVID-19 products liability action” that requires a plaintiff to prove by clear and convincing evidence that (1) the defendant entity or individual was reckless or its misconduct was willful, and (2) “the alleged harm, damage, breach, or tort resulting in the personal injury was directly caused by the alleged gross negligence or willful misconduct.” Such an action only applies to “covered products,” which Senate Bill 51 defines as “a pandemic or epidemic product, drug, biological product, device, or an individual component thereof to combat COVID-19.”
Should Senate Bills 51 & 42 become law, future plaintiffs will be required to prove either that entities or individuals recklessly disregarded the actual exposure to COVID-19 or intentionally and knowingly took action despite an obvious risk of actual exposure to COVID-19.
Senate Bills 51 & 42 have been perfected by the Missouri Senate and are currently assigned to the Missouri House Special Committee on Litigation Reform. Representative Ed Lewis has sponsored a similar bill, House Bill 759, in the Missouri House.
If you have questions about how this proposed legislation may affect you or your business, contact the attorneys at Newman, Comley & Ruth P.C. at (573) 634-2266 or through our webform.
