Sec. 122. Liability; safe harbor
715 words·~3 min read·
/bill/116/hr/8832/ih/section-122A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Notwithstanding any other provision of law, and except as otherwise provided in this section, no individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any coronavirus exposure action unless the plaintiff can prove by clear and convincing evidence that— in engaging in the businesses, services, activities, or accommodations, the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus; the individual or entity engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and the actual exposure to coronavirus caused the personal injury of the plaintiff.
If more than 1 government to whose jurisdiction an individual or entity is subject issues applicable government standards and guidance, and the applicable government standards and guidance issued by one or more of the governments conflicts with the applicable government standards and guidance issued by one or more of the other governments, the individual or entity shall be considered to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection (a)(1) unless the plaintiff establishes by clear and convincing evidence that the individual or entity was not making reasonable efforts in light of all the circumstances to comply with any of the conflicting applicable government standards and guidance issued by any government to whose jurisdiction the individual or entity is subject.
If mandatory standards and regulations constituting applicable government standards and guidance issued by any government with jurisdiction over the individual or entity conflict with applicable government standards and guidance that are not mandatory and are issued by any other government with jurisdiction over the individual or entity or by the same government that issued the mandatory standards and regulations, the plaintiff may establish that the individual or entity did not make reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection (a)(1) by establishing by clear and convincing evidence that the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the mandatory standards and regulations to which the individual or entity was subject.
If an individual or entity engaged in businesses, services, activities, or accommodations maintained a written or published policy on the mitigation of transmission of coronavirus at the time of the actual, alleged, feared, or potential for exposure to coronavirus that complied with, or was more protective than, the applicable government standards and guidance to which the individual or entity was subject, the individual or entity shall be presumed to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection (a)(1).
The plaintiff may rebut the presumption under subparagraph
(A)by establishing that the individual or entity was not complying with the written or published policy at the time of the actual, alleged, feared, or potential for exposure to coronavirus. The absence of a written or published policy shall not give rise to a presumption that the individual or entity did not make reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection (a)(1). For purposes of subsection (a)(1), a change to a policy or practice by an individual or entity before or after the actual, alleged, feared, or potential for exposure to coronavirus, shall not be evidence of liability for the actual, alleged, feared, or potential for exposure to coronavirus. No individual or entity shall be held liable in a coronavirus exposure action for the acts or omissions of a third party, unless— the individual or entity had an obligation under general common law principles to control the acts or omissions of the third party; or the third party was an agent of the individual or entity. Changes to the policies, practices, or procedures of an individual or entity for complying with the applicable government standards and guidance after the time of the actual, alleged, feared, or potential for exposure to coronavirus, shall not be considered evidence of liability or culpability.