As the COVID-19 pandemic continues to strain the manpower and protective tools necessary to combat the spread of infectious disease, many companies are stepping up efforts to produce, modify and/or distribute essential medical equipment and supplies to the heroes on the frontlines of this crisis. But are these companies opening themselves up to future liability?

On March 17, 2020, the Secretary of the Department of Health and Human Services issued a declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) extending immunity from liability (except for willful misconduct) for claims of loss caused, arising out of, relating to, or resulting from the administration or use of certain countermeasures (including respirators and other masks) used to combat or reduce the spread of COVID-19. On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) into law. The CARES Act provides emergency assistance to those affected by the global pandemic by, among other things, incentivizing businesses to manufacture and distribute respiratory protective equipment through extension of certain liability protection to manufacturers of certain devices used in the fight against COVID-19.

While the PREP Act immunizes certain activities, which the CARES Act modified to include additional types of personal protection equipment (PPE), there are certain limitations and restrictions in the application of these protections. Companies may, therefore, look to certain state laws that serve to immunize activities such as making, modifying and/or distributing products aimed at fighting against COVID-19. Such state liability protections include Good Samaritan laws, some form of which have been adopted by all 50 states and Washington, D.C.

Set forth below is a survey of the Good Samaritan laws adopted across the nation. While most of these laws do not extend immunities to companies undertaking activities to combat against COVID-19, some do provide at least a measure of protection, potentially insulating companies from future liability.

States Where Protection From Liability May Be Afforded

Twenty states have enacted Good Samaritan statutes that may provide product liability protection for activities performed in response to the COVID-19 crisis. The majority of these states (Alaska, California, Connecticut, Delaware, Georgia, Iowa, Louisiana, Massachusetts, Oklahoma, South Dakota and Utah) provide some level of immunity from civil liability to certain entities that provide “assistance” during a state of emergency. Ohio, Hawaii, Pennsylvania, Nebraska, Texas and Wisconsin have codified laws that protect certain donations made to qualifying organizations, while Arkansas and South Carolina’s respective “Volunteer Statutes” applying liability protections. For your convenience, a summary chart is provided below.

Providing “Assistance” During State of Emergency Statutes

Alaska, California, Connecticut, Delaware, Georgia, Iowa, Louisiana, Massachusetts, Oklahoma, South Dakota and Utah each have statutes that provide liability immunity to certain entities who provide assistance, whether by way of services and/or goods, either during a state of emergency or when authorized and/or asked by a qualifying state agency to provide such assistance.

For example, Oklahoma law provides that when an emergency declaration is in place, an “individual, business, church or school” who provides emergency care, shelter, or other assistance will not be held legally responsible for damages unless they acted with extreme carelessness or intent to cause harm.¹ While “other assistance” has not been interpreted by a court of law in the context of a pandemic, it is arguable that it would include the provision of necessary medical supplies.

Alaskan law also stipulates that a person who provides equipment or services at the request of a police agency, fire department, rescue or emergency squad, or other governmental agency during a state of emergency is not liable for the death of or injury to any person or damage to any property caused by that person’s actions.² This immunity is not conferred if the person acted intentionally, recklessly or with gross negligence. One caveat is whether the statute applies only to individuals or if it encompasses entities as well. Pursuant to Alaska Stat. Ann. § 01.10.060 (a)(8), unless the context otherwise requires, “person” includes a corporation, company, partnership, firm, association, organization, business trust or society, as well as a natural person. It can be argued that the context of § 09.65.091 does not require interpreting the word “person” as only a natural person. However, this exact nuance has not been analyzed by any court and therefore, is left up to a reasonable interpretation.

Connecticut³ , Delaware⁴, Georgia⁵, Iowa⁶, Louisiana⁷ and Massachusetts⁸ have enacted statutes that confer immunity upon individuals and/or entities providing assistance when they have been authorized and/or asked to provide such assistance by a specified state actor during a state of emergency.

Under Louisiana⁹ and Delaware’s¹⁰ relevant statutes, if an entity is providing services and/or materials pursuant to a contract with the state during a state of emergency, it appears those activities will be immune from civil liability. Thus, if a corporation has a contract with or enters into a contract with the state of Delaware or Louisiana as a result of the declaration of an emergency due to COVID-19, and pursuant to that contract is furnishing PPE or other medical supplies, it’s likely that the corporation would be immune from liability for such activities.

Likewise, Connecticut¹¹, Iowa¹² and Massachusetts¹³ have statutes that require a corporation’s activities to be authorized by a specific state actor during a state of emergency in order for immunity to apply. Notably, whether immunity will apply to a corporation under these states’ respective statutes will depend on how a court interprets specific nuances that exist in each statute. For example, Connecticut’s relevant statute will allow immunity to persons who have been authorized by the civil preparedness forces to assist in the prevention or mitigation of an emergency.¹⁴ What entities will constitute a civil preparedness force is broadly defined and there is no interpretation as to what “assistance” means. Under Iowa’s statute, what constitutes “emergency care or assistance to a victim of the public health disaster” is not defined nor analyzed.¹⁵

California, Utah and South Dakota have enacted statutes that only provide protections when the actions are done “gratuitously” and “without compensation.”

In California, if a company is listed on the California Office of Emergency Services registry of private business and nonprofit organizations pursuant to California Government Code § 8588.2, and they voluntarily and “gratuitously donate” services, goods, labor, equipment, resources, etc., in compliance with § 8588.2, during a declared state or local emergency, civil immunity will be extended to that company for any death, injury, or damage caused by such donation.¹⁶

In Utah, persons who gratuitously, and in good faith, assist a governmental agency or political subdivision in: (a) implementing measures to control the causes of epidemic and communicable disease and other conditions significantly affecting the public health, or necessary to protect the public health, (b) investigating and controlling suspected bioterrorism and disease, and (c) responding to a national, state, or local emergency, a public health emergency, or a declaration by the President of the United States or other federal official requesting public health-related activities, are immune from liability for any civil damages or penalties as a result of any act or omission unless the person rendering the assistance is grossly negligent.¹⁷

South Dakota has a similar statute that confers immunity upon someone that “without compensation” responds to provide services, which may include the provision PPE or other medical supplies.¹⁸

Donation Statutes

Protection from liability may also be afforded to corporations who donate PPE and/or medical supplies in Hawaii¹⁹, Ohio²⁰, Pennsylvania²¹, Nebraska²², Texas²³ and Wisconsin²⁴. Under these states’ laws, whether immunity will be provided is dependent upon where the donation is being made and what the donation is.

Volunteer Statutes

Arkansas and South Carolina provide corporations responding to the COVID-19 crisis with product liability immunity if the corporations are considered to be “volunteers” under the states’ respective statutes.

Under Arkansas Code Annotated § 16-6-105, certain “qualified volunteers” will not be liable in damages for personal injury or property damage sustained by one who is a recipient, consumer or user of the services or benefits of the volunteer.²⁵ A qualified volunteer is defined as “any person who of free will provides goods or services without financial compensation to or through any volunteer agency in connection with a volunteer program.” Accordingly, if a corporation is considered to be such a “qualified volunteer,” their donation of PPE or other medical supplies to qualifying volunteer agencies may be considered free from civil liability.

South Carolina’s statute provides similar immunity to certain volunteers providing services for a “charitable organization.”²⁶

Summary Chart of Good Samaritan Laws Providing Protections

States Where No Protection From Liability Will Be Afforded

The remaining 31 states’ and Washington, D.C.’s²⁷ Good Samaritan laws provide no product liability protection to companies making, modifying and/or distributing products, including PPE or other medical supplies, in response to the COVID-19 crisis. As a general overview, all of these states’ Good Samaritan laws, with few exceptions, will provide immunity only to persons or medical professionals who are, in good faith and gratuitously, rendering emergency care or assistance at the scene of an emergency. So long as these individuals are rendering such care without gross negligence or willful misconduct, immunity from civil liability will generally be conferred upon them. Moreover, at least two, Michigan²⁸ and Missouri²⁹, only extend their Good Samaritan immunity to licensed medical professionals or those trained in first aid.

Conclusion

Overall, the majority of states’ Good Samaritan Laws will not provide immunity or other protections to companies making, modifying and/or distributing products, including PPE or other medical supplies, in response to the COVID-19 crisis. While there are a number of states’ laws that may provide immunity under certain, explicit circumstances, many of these laws have not been analyzed or interpreted in such a context and thus, whether they truly do provide such protection is an open-ended question. Accordingly, corporations wishing to make, modify and/or distribute products, including PPE or other medical supplies, in response to the COVID-19 crisis, should proceed with caution.

Overall, the majority of states’ Good Samaritan Laws will not provide immunity or other protections to companies making, modifying and/or distributing products, including PPE or other medical supplies, in response to the COVID-19 crisis. While there are a number of states’ laws that may provide immunity under certain, explicit circumstances, many of these laws have not been analyzed or interpreted in such a context and thus, whether they truly do provide such protection is an open-ended question. Accordingly, corporations wishing to make, modify and/or distribute products, including PPE or other medical supplies, in response to the COVID-19 crisis, should proceed with caution.

FOOTNOTES

1. 76 Okl. St. Ann. § 5.9.
2. Id. at § 09.65.091.
3. Connecticut General Statute Annotated § 28-13.
4. Delaware Code Annotated title 20, § 3129.
5. Georgia Code Annotated § 51-1-29.2.
6. Iowa Code Annotated § 135.147.
7. Louisiana Statute Annotated § 29:771(B)(2)(b),(d).
8. Mass. Spec. Laws Ch. S31, § 12.
9. La. Stat. Ann. § 29:771(B)(2)(b) provides that "during a state of public health emergency, any private person, firm or corporation and employees and agents of such person, firm or corporation in the performance of a contract with, and under the direction of the state or its political subdivisions under the provisions of this Chapter shall not be civilly liable for causing the death or, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct."

   In conjunction with the contract provision mentioned above, Louisiana also has a statute that provides immunity during a state of public health emergency to “any private person, firm or corporation and employees and agents of such person, firm or corporation, who renders assistance or advice at the request of the state or its political subdivisions under the provisions of § 29 shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct." La. Stat. Ann. § 29:771(B)(2)(d).

10. Delaware Code Annotated title 20, § 3129 provides in relevant part that no “person, firm, corporation, or other entity performing work and/or furnishing material pursuant to a contract (written or oral) with the State or with any county in the State, or with any municipal corporation of the State, or with any other political subdivision of the State or with any agency of any of them, entered into as a result of the declaration by the Governor of an emergency order or entered into as part of efforts to comply with this chapter, shall be liable for the death of or any injury to persons, or damage to property, as a result of such relief operations and activities and/or the performances of or attempts to perform such contract."
11. Connecticut General Statute Annotated § 28-13 (conferring immunity to persons who have been authorized by the civil preparedness forces to assist in the prevention or mitigation of an emergency).
12. Iowa Code Annotated § 135.147 (conferring immunity to persons who, during a public health emergency, have been requested by the Department of Public Health or Department of Public Defense to render emergency care or assistance).
13. Mass. Spec. Laws Ch. S31, § 12 (conferring immunity on persons who “aid in civil defense” during a declaration of emergency.).
14. Conn. Gen. Stat. Ann. § 28-13.
15. Iowa Code Annotated § 135.147.
16. California Gov’t Code § 8657.5.
17. Id. at § 78B-4-501(3)(a).
18. S.D. Codified Laws § 34-22-44.2.
19. Hawaii’s Revised Statute Annotated § 663-10.6(b) provides that any person who donates goods, food, materials, or services to a charitable or nonprofit organization shall be exempt from civil liability for injuries and damages resulting from the donation, except for gross negligence or wanton acts or omissions. A charitable or nonprofit organization is described as an organization that “in good faith provides shelter or proper means of subsistence to needy persons as part of its bona fide and customary charitable activities, rendered without remuneration, or expectation of remuneration.” Id. at § 633-10.6(a). Arguably, if a corporation donates PPE or medical supplies to such a charitable organization, that corporation would be entitled to the protections under these statutes.
20. Ohio’s Revised Code Annotated § 2305.37(C) states that a person who, in good faith, donates consumer goods to a state agency, is not liable in damages in a tort action for harm that allegedly arises because those consumer goods are not fit for use at the time the agency or any other agency distributes them to a particular individual in need, if both of the following apply: (1) prior to the donation of the consumer goods to the agency, the person determines that the consumer goods will be fit for use at the time of their donation, and (2) the person does not make the determination that the consumer goods will be fit for use at the time of their donation to the agency in a manner that constitutes gross negligence or willful or wanton misconduct. Accordingly, it is possible that the donation of certain PPE, such as masks, may fall within this statute’s immunity. However, it is not likely that the donation of other medical equipment or supplies would be given the same immunity.
21. Pennsylvania’s relevant statute, 42 Pa. Stat. and Cons. Stat. Ann. § 8338.1, provides immunity for donations of vehicles or equipment to a volunteer fire company, volunteer ambulance service, or volunteer rescue service, with the definition of “volunteer ambulance service” including “[a]ny nonprofit chartered corporation, association or organization which is located in this Commonwealth and which is regularly engaged in the service of providing emergency medical care and transportation of patients.” Accordingly, if PPE and/or other medical supplies are considered equipment under the statute, and a corporation donates these items to a qualifying agency, then a corporation may be able to claim this immunity.
22. Under Nebraska Revised Statute Annotated § 25-21, 282, a person who donates fire control or rescue equipment to a fire department or a political subdivision for use by its fire department shall not be liable for civil damages for personal injuries, property damage or loss, or death caused by the fire control or rescue equipment after donation, except for those injuries, loss, damage, or death caused by the donor’s intentional or reckless conduct or gross negligence.

    The statute provides that “fire control or rescue equipment” means any vehicle, equipment, tool, communications equipment, or protective gear used in firefighting, rescue services, or emergency medical services.” Id. at § 25-21, 282 (3)(a). Thus, PPE or other medical supplies may fall under this definition. If true, then a corporation’s donation of such supplies to a Nebraska fire department or political subdivision for use by Nebraska’s fire departments would be able to claim the immunity conferred under the statute.

23. Under Tex. Civ. Prac. & Rem. Code § 89.002, a person who donates a medical device in good faith shall not be liable for personal injury, property damage, or death resulting from the nature, age, packaging, or condition of that device so long as the device is donated to an entity that is authorized to possess the device and that is a nonprofit health care organization for use in providing free or reduced cost health care. There is no corresponding protections afforded under the Good Samaritan law for medical devices sold.

    Device is defined as “braces, artificial appliances, durable medical equipment, and other medical supplies. The term does not include a medical device that is injected, implanted, or otherwise placed in the human body.” Id. at § 89.001 (1). Non-profit health organization is defined as either, (a) 501(c)(3) or 501(c)(4) organization that is organized and operated for the purposes of providing free or reduced health care; or (b) a bona fide charitable organization that is organized and operated for the purpose of providing free or reduced cost health care, that dedicates its assets to charitable purposes, and that does not provide net earnings to, or operate in a manner that inures to the benefit of, an officer, employee, or shareholder of the organization.

24. Wisconsin law exempts from liability any person engaged in the sale or use of commercial equipment or technology, for profit or not for profit, who donates any commercial equipment or technology to a public or private school or institution of higher learning from any death of or injury to an individual caused by the commercial equipment or technology so donated. Wis. Stat. Ann. § 895.515. Consequently, there may be an argument that corporations donating PPE or medical supplies to medical facilities associated with Universities would be immune from suit related to any failure of that donated PPE to adequately protect the user.
25. Ark. Code Ann. § 16-6-105. It should be noted that immunity will not apply in all situations – for example, if the volunteer is covered by a policy of insurance. Id. at § 16-6-105(1).
26. S.C. Code Ann. § 33-56-180 provides that when an employee of a charitable organization is acting within the scope of his employment, he will not be held legally responsible for acting or failing to act, so long as the employee was not acting with extreme carelessness or intent to cause harm.
27. Alabama, Alabama Code § 6-5-332; Arizona, Ariz. Rev. Stat. Ann. § 32-1471; Colorado, Colo. Rev. Stat. Ann. § 13-21-108; Florida, Fla. Stat. Ann. § 768.13; Idaho, Idaho Code Ann. § 5-330; Illinois,745 Ill. Stat. Comp. Ann. § 49/15; Indiana, Ind. Code Ann. § 34-30-12-1; Kansas, Kan. Stat. Ann. § 65-2891b; Kentucky, Ky. Rev. Stat. Ann. § 311.668; Maine, Me. Rev. Stat. tit. 14, § 164; Maryland, Md. Code Ann., Cts. & Jud. Proc. § 5-603; Michigan, Michigan Comp. Laws Ann. § 691.1501; Minnesota, Minn. Stat. Ann. § 604A.01(2)(a); Mississippi, Miss. Code Ann. § 73-25-37; Missouri, Missouri Stat. § 537.07; Montana, Mont. Code Ann. § 27-1-714; Nevada, Nev. Rev. Stat. Ann. § 41.500(1); New Hampshire, N.H. Rev. Stat. Ann. § 508:12-a; New Jersey, NJ Rev Stat § 2A:62A-1 et seq.; New Mexico, N.M. Stat. Ann. § 24-10-3; New York, N.Y. Pub. Health Law § 3000-a; North Carolina, N.C. Gen. Stat. Ann. § 90-21.14; North Dakota, N.D. Cent. Code Ann. § 32-03.1-02; Oregon, Or. Rev. Stat. Ann. § 30.800; Rhode Island, R.I. Gen. Laws Ann. § 9-1-27.1; Tennessee, Tenn. Code Ann. § 63-6-218; Vermont, Vt. Stat. Ann. tit. 12, § 519; Virginia, Va. Code Ann. § 8.01-225; Washington, Wash. Rev. Code Ann. § 4.24.300; Washington D.C., D.C. Code Ann. § 7-401; West Virginia, WV Code § 55-7-15; and Wyoming, WY Stat § 1-1-120.
28. Michigan Comp. Laws Ann. § 691.1501.
29. Missouri Stat. Ann. § 537.07.