Ky. Latest State To Enact COVID-19 Liability Shield Law

By Y. Peter Kang
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Law360 (April 12, 2021, 8:22 PM EDT) -- Kentucky has enacted a law that shields businesses and health care providers from COVID-19 injury and death lawsuits, following Florida as the latest state to provide a legal safe haven for businesses amid the pandemic.

The bill, S.B. 5, had been approved by lawmakers in the Republican-dominated Kentucky General Assembly in late March and became law on Sunday after it was left unsigned by Democratic Gov. Andy Beshear, who had the power to veto the bill but chose not to exercise that option.

A spokesperson for the governor's office did not immediately respond to a request for comment Monday.

The new law states that premises owners and health care providers can't be held liable for coronavirus-related injuries suffered by patients or business invitees during the state health emergency sparked by the coronavirus pandemic. The bill defines premises owners as restaurants, retail shops, schools, churches, stadiums, gyms, medical facilities and long-term care facilities, among other entities.

The law excludes cases involving gross negligence or wanton, willful, malicious or intentional misconduct, according to the bill's text. S.B. 5 was passed by both the Kentucky House and Senate largely along partisan lines on March 30, the last day of the legislative session, according to legislative records.

Pro-business groups had lobbied hard for the bill's passage, arguing it was necessary to prevent struggling businesses from being the target of frivolous lawsuits. Ashli Watts, president of the Kentucky Chamber of Commerce, said in a statement issued Sunday that the group was pleased to have Kentucky joining other states that have passed similar legislation.

"This past year has created challenges unlike anything we have seen, but the pandemic has shown us Kentuckians will rise to the challenge to serve and protect one another," she said.

Opponents of the bill claim it is essentially a solution in search of a problem and is overbroad and restricts an individual's constitutional right to a jury trial. The legislation includes a severability clause stating that if a court finds one part unconstitutional the remaining parts shall remain legally valid.

Kentucky was one of several states to have prioritized such legislation as a top Republican priority, with state lawmakers introducing the bill on Jan. 5. The bill's passage follows the enactment of a similar law in Florida on March 29, making the Sunshine State the most populous state to date to have adopted a COVID-19 injury liability shield.

West Virginia, Indiana and Alabama are other states to have passed similar coronavirus legislation in recent months after Ohio and Georgia greenlit their own laws in the second half of 2020.

--Editing by Janice Carter Brown.

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