On the last day of the legislative session May 14, the Missouri legislature passed a COVID-19 tort relief bill that is expected to be signed by Gov. Mike Parson.
The bill provides tort relief for businesses facing exposure claims, health care providers in medical liability actions, and certain product liability defendants.
“The bill moves up the standard of liability for exposure claims from mere negligence to a recklessness standard,” attorney Mark Behrens told the St. Louis Record. “When juries look to determine whether somebody was reckless, they will likely consider what the public health guidance was at the time.”
Although the Missouri Department of Health and Senior Services has recommended the use of face masks in public, the state never implemented a statewide mask mandate, while several cities and counties required face coverings.
“The bill provides a defense for businesses that post a notice at their entrance to the business,” Behrens said.
He explained that there is "a rebuttable presumption of an assumption of risk" by a plaintiff in a COVID-19 exposure action that when an individual or business posts a clearly visible warning notice advising entrants or anyone engaging the services of the business that they are assuming inherent risks associated with COVID-19 exposure - except for recklessness or willful misconduct.
The bill specifies the following warning notice for use by business owners:
WARNING
Under Missouri law, any individual entering the premises or engaging the services of the business waives all civil liability against the individual or entity for any damages based on inherent risks associated with an exposure or potential exposure to COVID-19, except for recklessness or willful misconduct.
“The question in these legal cases when they are brought will be whether the business was reckless, but having that warning sticker at the entrance to the business is an important protection to provide a defense to the business,” Behrens said.
Once signed by Parson, the lawsuit shield becomes effective on Aug. 28.
“Plaintiff's lawyers conceivably could file lawsuits before August 28 and not meet the higher burden of proof standard that’s in the bill,” Behrens noted.
Under the proposed law, a COVID-19 product liability plaintiff must prove with clear and convincing evidence recklessness or willful misconduct and a two-year statute of limitations applies unless tolled for proof of fraud or intentional concealment.
“The concern of businesses is that they will face lawsuits in the future, maybe several years from now, where juries will be asked with 20/20 hindsight to judge what could have or what should have been done,” Behrens added. “Now, businesses have more certainty over what the standard of liability will be when those decisions are being made by juries.”
The law will sunset four years after Gov. Parson enacts the legislation.
“The bill is not going to protect wrongdoers,” Behrens said. “It is simply providing more predictability to businesses to move forward with the knowledge of what they need to do to avoid liability, which is to follow guidance while still allowing recourse for plaintiffs against businesses that are reckless.”