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
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.
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
|State||"Assistance" Protections||Donation Protections||Volunteer Statutes||Must be Provided Without Compensation|
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.
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.