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What's in store for COVID-19 tort reform bills?

Chad West March 3, 2021

Texas lawmakers are working to pass Legislation this session intended to protect businesses – including small businesses, non-profits, healthcare systems and religious organizations – from liability for injuries arising from COVID-19. Two specific bills – S.B. 6 and H.B. 3659 – relate to the liability of specific claims arising during a pandemic emergency and specify who is off the hook for damages.

Given abundant community spread throughout the pandemic and the lack of rigorous contact tracing in many communities and cases, we believe it will be difficult for claimants to accurately point to exactly how they got the disease. Unless you almost literally did not leave your home, got a negative test, were exposed to one person and then contracted the disease, it will be difficult for most individuals to pinpoint how they got the disease. Thankfully, most individuals who have contracted the virus have or will recover and (hopefully) not suffer long-term side effects. However, some individuals who suffered from severe disease and are still dealing with the long-term side effects requiring skilled (and expensive) medical care AND who know how they got the disease may need to consider if they should pursue a financial recovery.

Under the legislation under consideration, businesses, healthcare systems, religious organizations and employees of these institutions can only be held liable for causing exposure to COVID-19 (or other pandemic disease) if claimants can establish:

  • The person who exposed the claimant to the disease knowingly failed to warn the individual of or remediate a condition that the person knew was likely to result in disease exposure, provided the business or organization had control over the condition, knew the individual who got sick was more likely than not to come into contact with the condition that would expose them to disease and had a reasonable opportunity or ability to remediate the condition or warn the individual of its existence and failed to do so;

  • The person, business or organization who exposed the claimant to the virus knowingly failed to implement or comply with public health guidelines, standards or protocols or warn the individual of the condition before the individual came into contact with that condition, assuming the person had a reasonable opportunity to comply with public health guidelines or standards AND refused to implement or flagrantly disregarded standards, guidance or protocols; AND

  • Reasonable scientific evidence shows that the above-mentioned failures to warn of the condition OR comply with public health guidelines were in fact the cause of the individual contracting the disease.

Items of note:

Both bills relate only to pandemic emergency disaster as declared by the President of the United States or the governor.

Language relating to products liability also shields from liability those entities which design, manufacture, sell or donate products unless those individuals specifically knew about a design flaw or defect, or acted with malice that resulted in damage to the plaintiff.

The bill as currently written specifically protects educational institutions and systems from liability, including public and private preschools, colleges and universities, day care centers and childcare centers and provides additional protection from liability from damages arising from cancellation or modification of a course, program or activity during the pandemic emergency.

Closing Thoughts

We want our clients to know that the proposed legislation does not mean that any and all potential claims for damages arising from COVID-19 or the pandemic circumstances will be dismissed. The takeaway for us is that any claim MUST be highly credible. As a general guideline for personal injury claims, credibility is always an asset. If you were harmed because an individual, business or organization acted negligently, you deserve compensation. In any personal injury case, we can help you evaluate whether your claim is credible and worth pursuing.

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