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Coronavirus liability bill shields Idaho businesses, schools even if they are negligent

$200M tax cut plan heads to Idaho Senate
Posted at 4:26 PM, Aug 26, 2020
and last updated 2020-08-26 18:26:25-04

BOISE — This article was originally published by Ruth Brown in the Idaho Statesman.

On the third day of the Idaho Legislature’s special session, lawmakers kicked it off with discussion about businesses, schools and local entities not being held liable for coronavirus transmission — one of the issues that led Gov. Brad Little to call the extraordinary session.

Rep. Julianne Young, R-Blackfoot, pitched House Bill 6 — the Coronavirus Limited Immunity Act — to the House Judiciary, Rules and Administration Committee on Wednesday morning. It was forwarded by the panel on a party-line vote, and then it passed the House in a 54-15 vote, with one legislator absent.

The only Republicans voting against the bill were Rep. Bryan Zollinger, R-Idaho Falls, and Rep. Fred Wood, R-Burley. Wood is a retired physician.

A big sticking point for Democrats, who opposed the bill, was that even if a business or school is negligent or grossly negligent regarding coronavirus exposure, they have no liability for damages or injury.

“I cannot in good conscious do that,” said Rep. Muffy Davis, D-Ketchum.

The bill outlines that if businesses, cities, counties, people or schools make an effort to avoid transmission and are not willfully or recklessly spreading the virus, they cannot be held liable.

Young said the bill is not intended to be an enforcement mechanism, but simply offers protection to those who are complying with public health orders and being cautious. She said it is not tied to any emergency declaration order.

The bill does not shield the state or federal government from any liability for decisions they make, Young said. It also does not shield public health districts from liability.

“There is no nefarious purpose here,” Young said. “We are not attempting to shield state and federal government.”

Rep. John Gannon, D-Boise, took issue with county governments being offered immunity. He mentioned that county jury duty is mandatory, unlike a person voluntarily visiting a business.

Gannon also sought an analysis from the Idaho Attorney General’s Office on the bill, and shared that document. In it, Brian Kane, assistant chief deputy, expressed concern over undefined terms in the bill and said that the legislation “likely conflicts with existing statutes.”

The committee voted 13-4 to move the bill forward, with all four Democrats voting against.

Later Wednesday on the House floor, several Democrats addressed their issues with the bill. Among complaints were a violation of citizens’ 7th Amendment right to file lawsuits based on disagreements between people or businesses, and the right to have that be decided by a jury in federal court.

Rep. Ilana Rubel, D-Boise, argued that Idaho already has robust laws for dismissing frivolous lawsuits.

“There’s been this perception that if we don’t act now … that there will be this tsunami of litigation that will wipe out businesses,” Rubel said. “I don’t think that’s true.”

Rubel said the bill “is using the heaviest hand of government to strip Idahoans of their right to redress for harm caused by even extreme negligence.”

Young argued that the threat of litigation, even if a lawsuit isn’t filed, is creating fear among business owners on whether to reopen.

“I don’t have qualms that would prevent me from feeling confident that we can move forward,” Young said.

Rep. Lauren Necochea, D-Boise, said she was concerned that business owners, especially those that host vulnerable populations, would become lax about virus prevention.

“Institutions can be sloppy under this bill and have immunity,” Necochea said. “We don’t do this for any other hospital-acquired infection.”

Legislators in the House said that they were going to attempt to finish the special session Wednesday night.

As of Tuesday, 328 Idahoans had died as a result of the virus and 28,398 Idaho residents have been diagnosed with COVID-19.

Audience members and residents who came to testify seemed calmer on Wednesday. On Monday, residents broke a glass door on the House gallery and on Tuesday four people were arrested after Idaho State Police said they refused to comply with requests from lawmakers and troopers.

With the exception of Ammon Bundy, who was arrested again Wednesday and has been banned from the Statehouse for a year, none of the audience members appeared disruptive.