As the coronavirus pandemic continues throughout the country, a key question for business owners is whether they can be held liable for exposure to coronavirus. Utah was one of the first states in the country to enact legislation designed to protect business owners from civil premises liability related to coronavirus exposure. But, as discussed below, the extent of the protection provided by Utah’s new statute remains unclear.
On May 4, 2020, Governor Herbert signed S.B. 3007, which was enacted as Utah Code §78B-4-517 effective as of August 18, 2020. Entitled “Immunity related to COVID-19,” the statute provides that “a person is immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person, or during an activity managed by the person.” “Person” is defined expansively to include: (1) any individual; (2) any type of business entity, including associations, institutions, corporations, companies, trusts, limited liability companies, and partnerships; (3) political entities and government offices; and (4) “any other organization or entity.” The statute makes clear that it applies in addition to any other available immunity protections and that it is not intended to modify protections afforded under Utah’s Worker’s Compensation Act, Occupational Disease Act, or Occupational Safety and Health Act.
However, the statute contains an exception to immunity in the case of willful misconduct, reckless infliction of harm, or intentional infliction of harm. These terms are not separately defined in the new statute. But definitions in other Utah statutes providing immunity from suit as well as case law may provide some guidance. For example, Utah’s Governmental Immunity Act defines willful misconduct as “the intentional doing of a wrongful act, or the wrongful failure to act, without just cause or excuse, where the actor is aware that the actor’s conduct will probably result in injury.” Utah case law has found willful misconduct to require “knowledge of the dangerous condition and of the fact that serious injury is a probable result, and inaction in the face of such knowledge.” There is also some guidance under Utah law for the terms reckless or intentional infliction of harm. Utah cases involving intentional infliction of emotional distress set a high bar, requiring a defendant’s conduct to be “outrageous and intolerable,” and explaining that such conduct “must evoke outrage or revulsion” or be “utterly intolerable in a civilized community.” Utah’s punitive damages statute requires a plaintiff to prove “willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others,” which Utah courts have interpreted to require conduct that is “highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” Yet even with a high bar for the required conduct, it is not hard to imagine a lawsuit claiming that failure to comply with governmental mandates or to follow safety procedures recommended by health authorities constitutes conduct sufficient to meet one of the exceptions to the statute. And in the end, without definitions set out in the statute, it is currently unknown what type of conduct will be required to establish an exception under the statute and it will likely be up to Utah courts to determine how the exceptions should be interpreted and defined.
In addition, it is not yet known whether this statute would pass a constitutional challenge. In Utah, to be constitutional, a statute that takes away a legal remedy, i.e., by abolishing a cause of action, must meet one of the following requirements: (1) it must “provide an injured person an effective and reasonable alternative remedy;” or (2) it must “eliminate a clear social or economic evil” and the elimination of the existing legal remedy must not be “an arbitrary or unreasonable means for achieving the objective.” Here, it is clear the statute does abrogate a legal remedy by taking away a potential plaintiff’s existing right to bring a premises liability claim. It likewise would most likely not be found to provide an effective and reasonable alternative remedy by only permitting liability in the case of willful misconduct or reckless or intentional infliction of harm. Whether the second part of the test would be deemed to be met is less clear. There would appear to be reasonable debate as to whether encouraging and enabling businesses to reopen without fear of facing litigation eliminates a social and economic evil; However, it could also be argued that the statute does not meet the reasonable means element where it eliminates an important right to seek redress for serious personal injury related to an unprecedented pandemic. Again, it is realistic to expect that the statute may face a constitutional challenge and any resolution of this issue will likely have to await decisions from the Utah courts.
In summary, while the new Utah statute purports to provide “immunity” from civil premises liability due to coronavirus exposure, it is reasonable to anticipate that premises liability suits will still be brought based on the exceptions to the statute, and by plaintiffs urging that the statute is not constitutional, which if successful could eliminate the statutory protection entirely. Thus, as the pandemic continues and evolves, it is important that Utah businesses continue to follow all governmental mandates as well as engage in best practices as recommended by applicable health agencies.