Kentucky’s new COVID-19 liability protections: what you need to know

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By: R. Austin Stevenson

In the waning hours of the 2021 Legislative Session, the Kentucky General Assembly passed Senate Bill 5 in an effort to shield business and premises owners from potential claims arising from COVID-19. The Bill became law on April 11, 2021, after Governor Andy Beshear failed to sign or veto it within ten days of passage. Below is a quick summary of some of the Bill’s highlights.

First, the Bill is designed to protect owners from lawsuits related to COVID, and it states that (except as otherwise provided in the Bill) an owner who follows executive actions to prevent the spread of COVID, and who invite or permit persons to come onto their premises during the declared COVID emergency: 1) does not extend any assurance that the premises are safe from any risk of exposure to COVID or conditions caused by the COVID emergency, 2) does not owe a duty to protect or warn about any risk related to or caused by COVID, and perhaps most importantly 3) does not assume responsibility, or incur liability, for any alleged injury, loss, or damage to persons or property arising from a COVID-19 claim.

The above language raises the question of what exactly does it mean for liability to arise from a COVID-19 claim. The Bill attempts to answer that question. Under the Bill, “arising from COVID-19” means an injury or harm occurring on or after March 6, 2020 (when the COVID emergency was first declared in Kentucky) that is caused by or results from 1) the actual, alleged, or possible exposure to, transmission of, or contraction of COVID-19; 2) services, treatment, or other action performed to limit the spread of COVID; or 3) services performed by an entity outside the normal course of its business in response to COVID. So, if the injury or harm alleged fits into one of those three categories, the owner may be able to use the Bill to shield itself from liability. Moreover, the Bill provides for a one year statute of limitations for the claims described above.

However, the protections outlined above are not absolute. For example, owners will not be immune from liability for damages that result from gross negligence, or wanton, willful, malicious, or intentional misconduct.

In addition to owners, essential service providers also receive protection under the Bill, by virtue of its provision stating that “Any essential service provider during the declared emergency of the COVID-19 pandemic shall not be liable for any COVID-19 claim.” However, these protections also do not extend to damages resulting from gross negligence, or wanton, willful, malicious, or intentional misconduct. The Bill provides a list of what will be considered “essential service providers.”

To summarize, the Bill provides protection for business owners and essential service providers from COVID-19 claims. However, the protections are not automatic, and they are not guaranteed. Owners must be following executive actions to prevent the spread of COVID, and the possible defenses granted in the Bill will still need to be correctly asserted and utilized in the event of lawsuit. This article is merely an overview of the Bill, and if you are facing a COVID-19 claim, or are curious if your business could potentially benefit from the Bill, contact a Strauss Troy attorney at 513-621-2120.

R. Austin Stevenson focuses his practice on general corporate and business law, litigation, labor and employment, and real estate. Originally from Wheelersburg, Ohio, he earned his bachelor’s degree in Political Science from NKU and his law degree from University of Kentucky College of Law. He can be reached at rastevenson@strausstroy.com or by phone at 513-768-9745.