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WSHB Nevada Client Alert – New Legislation Providing Immunity to Certain Businesses from Covid Personal Injury and Wrongful Death Claims

August 6, 2020

On August 5, 2020 during a special session of the Nevada Legislature SB4 was passed and is expected to be signed by the Governor on August 11, 2020. This bill grants broad liability protections to businesses including for profit, governmental entities and private non-profit organizations creating immunity from civil liability for personal injury or death resulting from exposure to Covid-19, if the business, governmental entity or private nonprofit organization substantially complied with controlling health standards. Notably hospitals and other health care facilities as well as school districts are exempted from receiving the additional protections afforded by this bill. The immunity will not apply if the business, governmental entity or private nonprofit organization violated controlling health standards with gross negligence and the gross negligence was the proximate cause of the personal injury or death. The injured party is not precluded from filing suit, but unless certain requirements are met, the suit will be subject to dismissal. A plaintiff must plead and provide that (1) the entity violated controlling health standards with gross negligence; and (2) the gross negligence was the proximate cause of the plaintiff’s personal injury or death. If a plaintiff meets it burden of proof that the entity was not in substantial compliance with controlling health standards the statutory immunity will not apply and the plaintiff can pursue any claim recognized at common law or by statute. The Court is required to determine, as a matter of law, whether an entity was in substantial compliance with controlling health standards at the time of the alleged exposure to Covid-19 and the plaintiff has the burden for proof in establishing that the entity was not in substantial compliance with controlling health standards. “Controlling health standards” is defined to mean “any of the following that are clearly and conspicuously related to Covid-19 and that prescribed the manner in which an entity must operate at the time of the alleged exposure: (1) A federal, state or local law, regulation or ordinance; or (2) A written order or other document published by a federal, state or local government or regulatory body. The actions of protected entities will be measured by a “substantial compliance” standard defined in the bill to mean the good faith efforts of an entity to help control the spread of Covid-19 in conformity with controlling health standards. The entity may demonstrate substantial compliance by establishing policies and procedures to enforce and implement the controlling health standards in a reasonable manner. Isolated or unforeseen events of noncompliance with the controlling health standards do not demonstrate noncompliance by the entity.

There is the potential for substantial litigation under this new statutory scheme. The bill specifically provides that the above immunity applies only to a cause of action or claim arising from a personal injury or death specified in section 29 of this act that accrues before, on or after the effective date of this act with a sunset or expiration date of the later of the date on which Nevada’s Governor terminates the emergency described in the Declaration of Emergency for Covid-19 issued on March 12, 2020 or no later than July 1, 2023.


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