Utah Legislature moves to shield businesses from coronavirus lawsuits

(Rick Egan | Tribune file photo) In this April 16, 2020, file photo, Rep. Melissa Garff Ballard makes some comments, in a special session in House Chambers, in front of video monitors and a nearly empty room.

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As the state makes moves to reopen its slumbering economy, the Utah Legislature approved a bill Thursday that would make property owners and business operators immune from lawsuits brought forward by people exposed to COVID-19.

The bill’s sponsor, Sen. Kirk Cullimore, R-Draper, said the measure will make it easier for businesses to open their doors without fear of facing a “frivolous” negligence lawsuit from their patrons or employees.

“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 said during debate on the bill on the final day of the Legislature’s first virtual special session. “So I thought that we should give those businesses some assurances ... that they will get immunity from these types of claims.”

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.

And while Cullimore said he was unaware of any COVID-19-related claims in Utah, Senate Majority Whip Dan Hemmert said he supported the effort to get ahead of any future litigation.

“We’re already seeing suits come up in other states related to COVID-19,” he said. “I think we’re better off just nipping this in the bud, even though it may be hard to prove.”

Cullimore, whose law firm represents many landlords in evictions and other proceedings, did not respond to a request for comment Thursday afternoon about whether the bill’s protections would apply equally to commercial and residential landlords. The legislation’s language is vague on that point, stating only that a person is immune from civil liability resulting from COVID-19 exposure "on the premises owned or operated by the person, or during an activity managed by the person.”

The move to protect businesses comes on the heels of Utah Gov. Gary Herbert’s announcement late last week that the state is working toward a “soft” reopening of the economy toward the beginning of the next month that would allow shuttered restaurants, gyms and parks to resume normal operations, though with new social distancing requirements.

And while SB3007 ultimately gained approval in both chambers, it faced significant debate as some lawmakers worried it sent the wrong message about social distancing or would disincentivize businesses from taking proper precautions.

Rep. Brian King, D-Salt Lake City, argued that the bill was a prime example of “opportunistic special interest legislation.”

“It gives a get-out-of-liability free card to just about all businesses and professionals for any misconduct connected with COVID-19,” he said. “I just think it’s irresponsible, especially in light of the fact we have no examples … of claims being made against businesses or professionals related to this pandemic.”

The immunity provided in the bill does not apply in cases of willful misconduct, reckless infliction of harm or intentional infliction of harm.

Sen. Jani Iwamoto, D-Holladay, agreed that the bill was targeting “a problem that we’re trying to solve that isn’t there.”

“It’s a major tort reform that I think the public needs to be involved with more and we need more discussion,” she said.

Iwamoto presented an amendment on the Senate floor that would have required a business to disclose the new limitations on civil liability — with a sign at the entrance to their store, for example — as an extra transparency measure, but the proposal ultimately failed on the floor.

SB3007 passed in the Senate 22-6 and in the House 54-21 and now moves to the governor for his signature or veto.

As part of the Legislature’s virtual special session, the Legislature also gave approval Thursday to a relaxed version of a bill that would compel the executive branch to consult with legislative leaders before taking emergency action during a pandemic.

The original proposal — criticized by some for muddying the separation of governmental powers — would’ve required the governor to give lawmakers 48 hours notice before an emergency rule, order, declaration or even statewide directive.

The amended version, approved in both chambers on Thursday, scaled back the proposal so the governor would only have to notify lawmakers 24 hours ahead of time. It also excluded from the requirement statewide recommendations or directives, which Gov. Gary Herbert has used in recent weeks to urge but not force Utahns to stay at home during the COVID-19 outbreak.

Some lawmakers in the House appeared hesitant to support the changes over concern that 48 hours was a more appropriate timeline for the part-time legislators to take action, if necessary.

House Majority Leader Francis Gibson said he, too, would have preferred the longer timeline but said “24 hours is better than the 15 minutes or after the fact” lawmakers have received from the executive branch so far.

“I would say that the 24 hours now is something that’s appropriate, it’s something we can readjust if we feel the need moving forward,” he said, though he noted that the governor would likely veto such a proposal and lawmakers would have to consider an override.

The Alliance for a Better Utah, a left-leaning group, has criticized the bill as a “blatant power grab” on the part of the Legislature. But senators Thursday described it as a commonsense approach encouraging intergovernmental partnership during crisis situations.

Sen. Todd Weiler, R-Woods Cross, emphasized that his vote in support of the bill was not meant to suggest Herbert has mishandled the coronavirus outbreak in Utah or to “try to flex legislative muscle.”

This bill puts what lawmakers have learned during this crisis “into statute so the next time a governor or Legislature face a health crisis like this, the rules will be better defined,” he said.

HB3005 contains an exemption to the 24-hour notice requirement if the governor must act swiftly to prevent imminent loss of life or injury or substantial property damage. It also gives the Legislature power to terminate any of the governor’s emergency orders or declarations with the passage of a joint resolution.

The measure passed the Senate 27-2 and the House 66-9 and now goes to the governor for his signature or veto.

Thursday marked the final day of the first and second special sessions called to respond to the coronavirus — but Senate President Stuart Adams told reporters that lawmakers expect more to come as they continue to deal with the fallout of the pandemic. The next emergency session will likely be held in May, he said.

- Salt Lake Tribune reporter Bethany Rodgers contributed to this report