by Jenna Lakamp
On July 7, 2021, Missouri’s Governor Parson signed into law a bill limiting civil lawsuits that can be brought against Missouri business, religious organizations, and health care providers. SB51 was passed by the Legislature on May 25, 2021, with support from Governor Parson.
The law states that no individual or entity will be liable for any COVID-19 exposure, unless the individual can prove they were exposed and suffered illness by “clear and convincing evidence.” In order to survive dismissal of a lawsuit under the law, individuals must also be able to prove that the business or entity engaged in “reckless or willful misconduct” and that the exposure caused personal injury to the employee.
The law sets a standard much higher than the typical duty of care established under Missouri law, making it more difficult for individuals to succeed when claiming liability for exposure to COVID-19. The law applies to all Missouri employers, including public entities such as schools and institutions of higher education – and the employees of such organizations. This means that individual employees could be named in potential lawsuits, but the bar to prove liability is very high. A litigant must prove that an individual engaged in “reckless or willful misconduct” that caused an “actual exposure” to COVID-19; which is very difficult to prove by “clear and convincing evidence.”
Another defense is offered to Missouri businesses and entities serving the public, if warning signs with specific language laid out in the law are posted on the premises. The law establishes a presumption that a litigant has assumed the risk of exposure to COVID-19 if a sign is posted and clearly visible at the entrance of the business. In order to gain the protection, the sign must state the language quoted in the law. If your organization plans to take advantage of this provision and post this warning, please be sure to quote the exact language from the law:
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 law specifies that evidence of specific policies adopted by Missouri businesses and entities to mitigate the spread of COVID-19 shall not be considered as evidence of liability. This offers protection to entities who enacted policies meant to protect patrons and community members and encourages those policies to continue if desired.
The law explicitly supplants common law claims. Thus, any claim of Covid-19 exposure must be brought pursuant to this new section of Missouri law, rather than under a general negligence or other common law or statutory claim. However, the law states that other claims, such as breach of contract and employment related claims are not affected by the new provisions of the law. The law also does not directly impact traditional employment claims brought under the Missouri Human Rights Act, the Whistleblower Protection Act, or Workers’ Compensation claims.
The law goes into effect on August 28, 2021. It sets a two-year statute of limitations to bring claims of COVID-19 exposure and damages. Finally, litigants will only have a limited time to bring such claims, as the statute expires five years from its effective date.
A summary of the bill can be found here: https://www.senate.mo.gov/21info/BTS_Web/Bill.aspx?SessionType=R&BillID=54105525
If you have questions about how SB51 affects your organization, please feel free to contact one a Tueth Keeney attorneys.
Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.
Jenna M. Lakamp practices primarily in the areas of labor & employment, litigation, and education law, representing both private and public institutions in education and employment matters. Jenna is licensed in Missouri and Illinois and regularly litigates in both jurisdictions. Prior to joining the firm, Jenna practiced civil litigation at a large defense firm in St. Louis where she gained experience in discovery, motion practice, and client interaction. Jenna attended law school at Washington University in St. Louis, where she was active in The National Moot Court Team. Jenna also clerked with a successful litigation firm during law school.