Lewis Kappes

As the rate of COVID-19 infections declines, there is reason to believe the worst is behind us. At the start of the pandemic, even the best museums and other businesses had to sift through inconsistent directions from governments and advisors to make their facilities and operations as safe as they could for their visitors and employees, updating practices and procedures as new guidance was issued.

            Even as the nation moves toward more of a normal life, museums should be aware that potential liability for COVID-19-related issues can extend well into the future, depending on the law of the state where you reside. For example, some states have a two-year statute of limitations for negligence claims, meaning a person who claims they became ill with COVID-19 in April of 2020 because they contracted it at a museum that “negligently failed to take adequate safety measures” would have until April 2022 to file a lawsuit against that museum. And, as you may have learned, insurance coverage for COVID-19 claims is not a sure thing (though you should check with your insurers in each case).

            In response to concerns from businesses, a number of states have passed, or are considering, legislation to protect businesses from liability related to COVID-19. To date, there is no federal legislation providing such protection, so museums need to look to the laws of their state.   The following is a summary of the COVID-19 liability protection laws affecting the main states in which AMM members are located. You will note that many of the laws refer to protection against “civil liability,” meaning a lawsuit or similar action, but do not provide immunity from criminal prosecution. This information is intended to be for your information only, and is not a substitute for legal representation.

Illinois

            Illinois has not yet passed legislation specifically tailored to COVID-19 liability protection.   On May 13, 2020, Illinois Governor JB Pritzker issued Executive Order 2020-37 which grants immunity from civil liability to health care professionals and health care facilities for injuries or death related to the diagnosis, transmission or treatment of COVID-19, but with exceptions for gross negligence or willful misconduct. See https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-37.aspx This protection currently extends only as long as the governor’s Disaster Proclamations remain in effect, and at any rate does not protect Illinois museums and most other businesses.

            In May of 2020, a bill was introduced in the Illinois General Assembly that would have created the “COVID-19 Immunity Act,” providing immunity from civil liability to “any individual, business, or unit of local government” for acts or omissions that result in the transmission of COVID-19, other than resulting from “willful and wanton misconduct.” See https://www.ilga.gov/legislation/BillStatus.asp?DocNum=3989&GAID=15&DocTypeID=SB&SessionID=108&GA=101. The bill‘s future is uncertain.

Indiana

            Indiana Governor Eric Holcomb signed Senate Enrolled Act 1 into law on February 28, 2021.   The law protects individuals, corporations, political subdivisions, governmental bodies and other organizations from civil liability for damages arising from COVID-19 on the premises they own or operate, on any premises in which they provide property or services to others, or during an activity they managed, organized, or sponsored.   The law also protects those who design, manufacture, label, sell, distribute or donate a COVID-19 protective product, and prohibits the filing of a class action lawsuit based on tort damages (like negligence) arising from COVID-19. See http://iga.in.gov/legislative/2021/bills/senate/1.

            The law does not cover damages caused by “gross negligence or wanton misconduct.” The law applies to incidents occurring on or after March 1, 2020, which should cover most (but not all) COVID-19 claims. The law is scheduled to expire on its own terms on December 31, 2024.

            For museums in Indiana that have health care providers working or volunteering at their facilities, the Indiana General Assembly also is considering House Bill 1002, which would, if passed, provide protection against disciplinary action for health care providers who provide health care services in response to a state disaster emergency. See http://iga.in.gov/legislative/2021/bills/house/1002.

Iowa

            Iowa Governor Kim Reynolds signed Senate File 2338 into law on June 18, 2020, and the law is retroactive to January 1, 2020.    The law protects one who possesses or controls a premises (like a museum or other business) from civil liability for any injuries caused by exposure to COVID-19, whether the exposure occurred on that premises or during any activity managed by the one who possesses or controls the premises (like a museum program conducted off-site).   There are exceptions for damages caused by a reckless disregard of a substantial and unnecessary risk, exposure to COVID-19 through an act of actual malice, or intentional exposure to COVID-19. See https://www.legis.iowa.gov/legislation/BillBook?ba=SF2338&ga=88.

            The Iowa law also establishes a safe harbor for individuals, corporations, governmental entities and other organizations, protecting them from liability to the extent they acted “in substantial compliance” or “consistent with” “any federal or state statute, regulation, order, or public health guidance related to COVID-19 that was applicable” at the time. The law also protects health care providers, absent a finding of recklessness or willful misconduct, and those who design, manufacture, label, sell, distribute or donate personal protective equipment (PPE) or other COVID-19 related products, unless there is a finding of actual malice or a reckless disregard of a substantial and unnecessary risk.

            The Iowa law also prevents anyone from filing a civil action regarding COVID-19 exposure unless the exposure resulted in hospitalization or death, or involved an act intended to cause harm, or was conducted with actual malice.

Michigan

            Michigan has passed two laws related to COVID-19 liability, both of which were approved by Governor Gretchen Whitmer on October 22, 2020 and apply retroactively to March 1, 2020.   Michigan Public Act 236 provides that an individual, corporation, governmental entity, nonprofit charitable organization, or other legal entities, are immune from liability for a COVID-19 claim as long as they act “in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm.” Perhaps in recognition that compliance with all such statutes, regulations, etc. can be difficult, the Act also states that “[a]n isolated, de minimis deviation from strict compliance … unrelated to the plaintiff’s injuries does not deny a person the immunity provided in this section.”   For a copy, see https://www.legislature.mi.gov/documents/2019-2020/publicact/pdf/2020-PA-0236.pdf.

            In other words, a museum in Michigan is protected against civil liability related to COVID-19 as long as it has complied with all relevant statutes, rules, regulations and orders, but the museum will not be penalized for a minor violation of a statute, rule, regulation or order if such violation does not relate to the conduct about which a plaintiff complains.

            Michigan Public Act 237 pertains to employer liability and states that an employer is not liable for an employee’s exposure to COVID-19 if the employer (similar to the language in Public Act 236) was operating “in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm.”    Also like the language in Public Act 236, an isolated, de minimis deviation from strict compliance will not deny immunity to the employer as long as the deviation is unrelated to the employee’s exposure. See https://www.legislature.mi.gov/documents/2019-2020/publicact/pdf/2020-PA-0237.pdf

Minnesota

            Minnesota has two bills pending, one in the House and one in the Senate, that are identical - Senate File 512 and House File 571.   Neither bill currently applies to museums or businesses other than health care facilities. For a copy of both bills, see https://www.revisor.mn.gov/bills/bill.php?b=Senate&f=SF0512&ssn=0&y=2019 and
https://www.revisor.mn.gov/bills/text.php?session=ls92&number=HF571&session_number=0&session_year=2021&version=list.

            For museums who employ health care providers, both bills provide protection from liability for health care providers who provide health care services during the state’s declared COVID-19 emergency, to the extent such services were affected by COVID-19, such as with the lack of PPE, insufficient availability of trained staff, delivery of care that exceeds the scope of the provider’s credentials, and similar conditions. No immunity is given for damages or injuries caused by gross negligence or intentional or reckless misconduct.

            Both bills were introduced on February 1, 2021, and both remain pending.

Missouri

            In Missouri, Senate Bills 51 and 42 were introduced in January of 2021, and now appear as a combined bill.   The bill provides that no individual or entity engaged in businesses, services, activities or accommodations shall be liable for COVID-19 exposure unless the plaintiff can prove that the individual or entity “engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19,” and the “actual exposure to COVID-19 caused the injury of the plaintiff.”   See https://www.senate.mo.gov/21info/pdf-bill/perf/SB51.pdf. If the bill is passed into law, museums and other businesses may assert a rebuttable presumption that a plaintiff assumed the risk of exposure if the museum posts a sign or other written notice (in a visible location at the entrance) stating the following (or something substantially similar):

“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 combined bill also protects health care providers from liability related to COVID-19 health care services, absent recklessness or willful misconduct on the part of the health care provider.

            The combined bill remains pending, and was assigned to committee on March 2, 2021.

Ohio

            Ohio Governor Mike DeWine signed House Bill No. 606 into law on September 14, 2020.   As currently written, the law will expire when the governor’s order declaring a state of emergency expires on September 30, 2021.   Ohio’s law prohibits civil actions for injuries, death or other losses if the action is based on the exposure to, or transmission or contraction of, COVID-19 and certain other diseases.   See file:///C:/Users/bas/Downloads/hb606_07_EN%20(4).pdf As with other laws described on this list, exceptions exist if the exposure, transmission or contraction was the result of reckless conduct, intentional misconduct, or willful or wanton misconduct.

            The Ohio law also protects health care providers from liability related to the provision of health care services, including first-aid treatment, emergency medical services, or the provision of medicine, as a result of or in response to a disaster or emergency, except in cases of reckless conduct, intentional misconduct, or willful or wanton misconduct.

            The Ohio General Assembly stated in House Bill 606 that the legislation was created in response to Ohio business owners being unsure about what tort liability they may face, and acknowledges that recommendations about how best to avoid infection with COVID-19 changed frequently.

Wisconsin

            Wisconsin has passed two laws directly related to COVID-19 liability.   On February 26, 2021, Wisconsin Governor Tony Evers signed into law a provision stating, effective March 1, 2020, a nonprofit organization, corporation, governmental entity or other legal entity is immune from civil liability for the death of or injury to any individual, or damages caused by an act or omission resulting in, or relating to, COVID-19 exposure, in the course of, or though the performance of the entity’s functions or services.   The immunity applies unless the entity’s action or omission involved reckless or wanton misconduct or intentional misconduct.   See Section 895.476 at https://docs.legis.wisconsin.gov/statutes/statutes/895.pdf, at page 24.

            Last year, Wisconsin passed a law, codified as Wisconsin Statute 895.4801, providing immunity to health care providers from civil liability for the death of or injury to an individual, relating to health care services provided during the governor’s declared state of emergency, and expiring 60 days following the end of that state of emergency.   The services must be provided in good faith or in accordance with applicable directions, guidance and recommendations, and cannot involve reckless or wanton conduct or intentional misconduct. See Section 895.4801 at https://docs.legis.wisconsin.gov/statutes/statutes/895.pdf, at pages 25-26.

Summary

            As you can see, while there are similarities between the laws of the various states (like excluding protection for recklessness or intentional misconduct), some states only protect health care workers, and those that protect businesses in general can either require near-perfect compliance with laws, regulations and guidance or have more general protections.

            Regardless of where your museum is located, you likely have taken precautions against COVID-19 liability, not only for the protection of your institution, but for the safety of your staff and visitors. Continuing those precautions into at least the near future would be wise to minimize liability, including the following steps:

1.            Make sure your museum is following all federal, state and local laws and regulations related to COVID-19 safety;

2.            Follow the directions of the Centers for Disease Control and Prevention, as well your state and local health departments;

3.            Follow all OSHA and state and local requirements for workplace safety;

4.            Know what insurance coverage you have (and don’t have), and ask your insurer to provide safety recommendations and reviews of your facility; and

5.            Ensure your staff are properly trained, and that policies for your staff and visitors are clear and enforced.

Eliminating all risk of liability is never possible, but these actions, together with any help you may receive from your state governments, should help.

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