The Journal Gazette
Sunday, December 13, 2020 1:00 am

Legislators' top priority: Protecting businesses

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – Legislative leaders have identified their top priority – one that will be likely be pushed through immediately when lawmakers return in January – and it isn't about health or education.

It is to protect businesses from lawsuits related to COVID-19.

A bill could be on the governor's desk in late January and likely will be retroactive to the beginning of the pandemic.

“We are in uncharted territory when it comes to liability exposure for COVID,” said House Majority Floor Leader Matt Lehman, R-Berne. “We are setting the table to prevent businesses from getting taken advantage of.”

He said many businesses are struggling to stay open and their biggest fear is someone suing for damages after claiming they were infected at their establishment.

“Can people do that? The answer is they shouldn't be able to,” Lehman said.

But even supporters couldn't point to any such lawsuits filed in Indiana – despite the pandemic raging for more than nine months.

“The person doesn't even know they have acquired the virus for days so how on earth do we prove it? That's why there are no cases,” said Fred Schultz, president of the Indiana Trial Lawyers Association. “It's a pretty big ask to say I got it at this hardware store not at this grocery store.”

He added the proposal “is a solution in search of a problem.”

Hoosiers seem to support the idea though. 

According to the latest edition of the Ball State Hoosier survey, 60% of respondents support changing Indiana law to require the General Assembly to approve any extension of a governor's emergency order beyond 30 days. That includes 56% of Democrats and 63% of Republicans in the survey.

Lehman is crafting a bill in the House that will cover businesses, nonprofits and schools. But it won't impact worker's compensation claims between employers and employees. A section of the bill could also strengthen protections for the health care industry though Indiana already has a law on the books.

The primary purpose of the measure being pushed by Republicans in both chambers is to limit civil lawsuits related to other entities. For example, someone alleging they got COVID-19 while eating at a restaurant, attending a school event or going to a nonprofit fundraiser.

Sen. Mark Messmer, R-Jasper, is handling the bill in the Senate.

“Are the odds that anyone would get sued super high? Probably not,” he said. “But as long as people have a fear of a potential civil lawsuit it's going to handcuff the state from ever moving back to some sort of normal. Everybody is so afraid of a lawsuit that could bankrupt a business or civic organization.”

Legislators are looking at how other states have handled the issue. At least 34 states have considered legislation related to legal liability, according to the National Conference on State Legislatures. Many of the wider liability protections have failed.

One bill in Illinois is pending that would provide any individual, business, or unit of local government liability protection for any civil damages for any acts or omissions that result in the transmission of the coronavirus, other than damages occasioned by willful and wanton misconduct by the individual, business, or unit of local government.

“We have to be careful because we don't want to craft something that gives bad actors a pass,” Lehman said. “But we need to do something now and not wait until there are 800 class action suits.”

He and Messmer said lawsuits would still be allowed in cases of “willful misconduct” and “gross negligence.”

Neither side had legislation finalized for review.

Kevin Brinegar, president and CEO of the Indiana Chamber of Commerce, said no protections will be given if the entity or business wasn't following state and local regulations. Some of those rules might include wearing face coverings, distancing tables at a restaurant and limiting occupancy.

He said those who are following the rules should not be forced to defend a lawsuit.

Brinegar gave a recent example of an auto store where an employee refused to wear a mask while serving his wife.

“That's an example of a bad actor and they would not be protected,” he said. “We are trying to strike a balance.”

Schultz, though, said granting immunity encourages businesses to behave badly because they can't be sued.

And he said some of the hypotheticals are “dancing on the head of a razor blade.”

Schultz wondered, for instance, what would happen if a business has a sign requiring facial coverings to be worn but doesn't enforce it.

“Is that willful misconduct or just being lazy and irresponsible?” Schultz asked.

He added that if nonprofits, businesses or schools want to have customers sign waivers, Indiana's law is much stronger than that of other states.

“That is a better option that blanket immunity,” Schultz said.

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