As coronavirus cases continue to rise, shuttered Utah restaurants, gyms and malls can now operate without fear of lawsuits brought forward by people exposed to the coronavirus on their property.
© Francisco Kjolseth
(Francisco Kjolseth | Tribune file photo) Euro Treasures Antiques places “we give up, store closing,” signs in downtown Salt Lake City as the COVID-19 pandemic takes its toll on businesses on Wednesday, April 29, 2020.
Gov. Gary Herbert signed legislation Monday that offers them immunity from such litigation in most cases.
Sen. Kirk Cullimore, the bill’s sponsor, posited the measure as a way to help kick-start the economy by easing fear for business owners of facing a “frivolous” negligence lawsuit from their patrons or employees.
But critics see it as a “get out of liability free card” that panders to special interests, hurts the most vulnerable and could disincentivize property owners and businesses from taking proper precautions.
“It sends precisely the wrong message to businesses and to landlords and to people out there who should be concerned that they do everything they can that’s reasonable to protect their customers and protect their employees,” House Minority Leader Brian King said in an interview with The Salt Lake Tribune.
The immunity provided in the bill does not apply in cases of willful misconduct, reckless infliction of harm or intentional infliction of harm.
During discussion on the provisions at last month’s special session, lawmakers agreed that it would be difficult for individuals to bring forward claims even without the legislation, since they would likely face difficulty proving where they actually contracted COVID-19.
But while Cullimore said he was unaware of any COVID-19-related claims in Utah, he argued it would just be a matter of time — and noted that litigation can be damaging to businesses already struggling financially as a result of the pandemic.
“There have been a rash of businesses that are nervous about these claims and there have even been threats of these claims as the economy reconstitutes,” he told his colleagues in the Senate while advocating for assurances to businesses that they could reopen without fear.
Debate over how much legal protection to offer the private sector during the pandemic has become a flashpoint across the nation as officials struggle to get the economy back on its feet after weeks of coronavirus-related closures.
Several states have shielded businesses from litigation, and at least 15 have enacted laws or governors’ orders that offer nursing homes and long-term care facilities some protection from lawsuits related to the pandemic, according to ABC News.
Nothing in Cullimore’s bill specifies that immunity protections extend only to commercial establishments in Utah, where more than a dozen coronavirus-related deaths can be traced to long-term care centers or nursing homes.
Paul Smith, executive director of the Utah Apartment Association, told The Salt Lake Tribune on Monday that the rental housing industry has interpreted the bill’s language as applying equally to landlords that are reopening fitness centers, pools and common areas.
As long as they follow rules and are diligent, “we have some shield of liability,” he said. “It would apply the same as a restaurant or the same as another business that’s opening up.”
Smith said he sees the new protections as a positive and doesn’t believe it will prevent people from taking proper precautions as the law wouldn’t apply in egregious cases.
“The intent of it, from my understanding, is so that people won’t stay closed, so people will open back up and not be too worried about it,” he said. “It doesn’t mean we shouldn’t be diligent.”
Cullimore, whose law firm represents many landlords in evictions and other proceedings, has not responded to multiple requests for comment on the bill and its protections.
A public records request for comments on the bill emailed to individual representatives or on a comment form available on the Legislature’s website for the special session shows lawmakers received relatively little input from the public on the immunity measure. But the few who did reach out said they were opposed.
“I feel this bill would be terrible,” wrote one Riverton resident.
“You can’t force people to go back to work, and then when people inevitably get sick, take away their only recourse,” a Salt Lake City resident argued.
The Senate had only partially responded to The Tribune’s records request as of Monday night.
In addition to his concerns about the effects of the bill, King has also expressed anger about its process. He argues that the intent language of the bill — which states that immunity would make it likelier for people to participate in the economy and encourage participation in potential tracking and reporting during the COVID-19 pandemic — went “far beyond the bill language.”
A week ago, the legislature passed in the third special session a bill that provided immunity from civil liability to all property owners who act either negligently or grossly negligent in connection with the COVID-19 pandemic and cause damage as a result of those actions. 1/
— Rep. Brian S. King (@RepBrianKing) April 30, 2020
In a strongly worded Twitter thread last week, the Salt Lake City Democrat said that last-minute addition, which was never made public before it was read on the floor, “reveals a lack of honor, integrity, or competence on the part of the individual legislators who propose and promote it.”
“Perhaps they are puppets of lobbyists or self-interested parties pushing the legislation,” he wrote. “Perhaps they are pushing their own financial or ideological agenda. Perhaps they are just being inattentive.”
But ultimately, he argued, “it is strong evidence that those legislators are not worthy to hold positions of public trust. The public needs to take notice of this kind of behavior and vote those elected officials out of office.”
King said he plans to introduce new rules that would require intent language to be made public before it is debated or voted on in the Legislature.
After passing with more than a two-thirds majority in both chambers of the House, the new immunity protections took effect immediately Monday with the governor’s signature.