Wide-Ranging Pandemic Liability Bill Needs Just One More Vote To Reach Ducey

By Terri Jo Neff

On Tuesday, the Arizona Senate is expected to vote one more time in favor of SB1377, a bill introduced by Sen. Vince Leach (R-LD11) to protect a wide range of businesses, government entities, and other organizations against liability for claims of negligence related to the COVID-19 pandemic.

SB1377 initially passed the Senate last month with a minor amendment. It cleared the House on Monday on a 31 to 29 vote after another amendment. But because the House added yet another amendment to the bill, it must go back to the Senate for the caucus to concur or refuse the change, which is expected to be accepted Tuesday.

The bill would then be sent to Gov. Doug Ducey, who appears ready to sign it, thus establishing a new standard for COVID-19 related liability claims retroactive to March 10, 2020.

After Monday’s House vote, the Arizona Chamber of Commerce tweeted a thank you to the 31 representatives who voted for the bill. “This bill ensures frontline healthcare providers, businesses, schools, and other entities are extended commonsense liability protections that will help us get back to work,” the tweet said.

The legislation addresses liability claims involving a public health pandemic under a state of emergency declared by a governor. It protects any person or provider “who acts in good faith to protect a customer, student, tenant, volunteer, patient, guest or neighbor, or the public” from liability during a pandemic for an injury, death or loss to person or property based on a claim that the person or provider failed to protect against the public health emergency.

  • SB1377 establishes a presumption that a person or provider acted in good faith if the person or provider adopted and implemented “reasonable policies related to the public health pandemic.” No definition, however, is provided for what constitutes reasonable policies.
  • Those covered by the legislation as a provider include a person who furnishes consumer or business goods or services or entertainment; an educational institution, district, or charter school; a property owner, property manager or property lessor or lessee; a nonprofit organization; a religious institution;
  • the state, a state agency, or instrumentality; any local government or political subdivision, including all departments or commissions; a service provider; a health professional; or a health care institution.

A key feature of Leach’s bill is a change in the type of alleged acts or omissions which someone can pursue damages for related to the pandemic. It removes simple negligence as being actionable and would require a plaintiff to meet the criteria for gross negligence or willful misconduct.

Opponents argue the legislation creates unnecessary hurdles for Arizonans seeking legal redress and that business owners, government officials, and healthcare professionals will escape responsibility for death, injuries, and other harms by blaming faulty or careless decisions on the pandemic.

Even those lawsuits which clear the gross negligence or willful misconduct threshold may not be able to meet the second significant change SB1377 makes to civil liability standards.

Currently a jury is asked to determine if a plaintiff has proven a claim by the “preponderance” of the evidence, a standard based on whether something was more likely or not to have occurred.  But SB1377 raises that to a higher standard of “clear and convincing” evidence.

  • Among those who oppose SB1377 are the American Civil Liberties Union of Arizona, Arizona Trial Lawyers Association, and Arizona Center for Disability Law. A constitutional challenge is expected if the bill becomes law based on provisions which make it harder for Arizonans to initiate legal action.

The most controversial provision of SB1377 relates to nursing care or residential care institutions.

An amendment added Monday puts the burden of proof on such institutions which wish to argue that a claim for an act or omission involving care not directly related to the public health pandemic should be mitigated because the institution had to treat other patients for the pandemic or that the institution experienced limitations of staff or equipment as a result of the pandemic.

Supporters of SB1377 include several insurance companies, as well as the Alliance of Arizona Nonprofits, Arizona Auto Dealers Association, Arizona Bankers Association, Arizona Board of Regents, Arizona Healthcare Association, Arizona Medical Association, Arizona Restaurant Association, and the County Supervisors Association of Arizona.