Bill Summary – FastDemocracy

67th Legislature                                                                                                      SB 65.2
                                                  SENATE BILL NO. 65
                                    INTRODUCED BY S. FITZPATRICK, M. NOLAND
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   A BILL FOR AN ACT ENTITLED: “AN ACT REVISING CIVIL LIABILITY LAWS; SETTING CONDITIONS ON
   CIVIL ACTIONS FOR EXPOSURE TO COVID-19; LIMITING LIABILITY OF PREMISES OWNERS;
   PROVIDING SAFE HARBOR AFFIRMATIVE DEFENSE FOR THOSE WHO COMPLY WITH CERTAIN TYPES
   OF REGULATIONS; LIMITING LIABILITY OF HEALTH CARE PROVIDERS; LIMITING PRODUCTS LIABILITY
   CLAIMS IN RESPONSE TO COVID-19; PROVIDING DEFINITIONS; AND AMENDING SECTION 27-1-719,
   MCA; AND PROVIDING AN EFFECTIVE DATE, AN APPLICABILITY DATE, AND A TERMINATION DATE.”
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              WHEREAS, the COVID-19 pandemic has caused significant disruption to Montana's people,
   businesses, places of worship, property owners, and nonprofit organizations and has adversely affected
   Montana's economy and the rights of Montana's citizens; and
              WHEREAS, in order to improve Montana's economy and to encourage people to engage in private
   sector activities, the Legislature believes it is necessary to enact this legislation to establish standards for
   imposing liability and to provide defenses for claims relating to COVID-19.
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              NEW SECTION. Section 1.       Definitions. As used in [sections 1 through 6 8], unless the context
   clearly indicates otherwise, the following definitions apply:
              (1)   "Covid-19" means the novel coronavirus identified as SARS-CoV-2, the disease caused by the
   novel coronavirus SARS-CoV-2 or a virus mutating from it, and conditions associated with the disease caused
   by the novel coronavirus SARS-CoV-2 or a virus mutating from it.
              (2)   "Health care professional" means, FOR THE PURPOSES OF [SECTIONS 1 THROUGH 8], physicians,
   PHYSICIAN ASSISTANTS, NURSE PRACTITIONERS, NURSES, NURSING ASSISTANTS, CHIROPRACTORS, PHARMACISTS,
   PHARMACY TECHNICIANS, DENTISTS, DENTAL HYGIENISTS, MEDICATION AIDES, RESPIRATORY THERAPIST
   PRACTITIONERS, PROFESSIONAL COUNSELORS, OCCUPATIONAL THERAPISTS, MIDWIFES, PSYCHOLOGISTS,                and other
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   health care practitioners who are licensed, certified, or otherwise authorized or permitted by the laws of this
   state to administer health care services in the ordinary course of business or in the practice of a profession,
   whether paid or unpaid. This term includes persons engaged in telemedicine as defined in 33-22-138, and a
   similar professional's employer or agent who provides or arranges health care.
              (3)   "Minimummedical condition" means an inpatient hospitalization or deathwhere the primary cause
   of the inpatient hospitalization or death is covid-19.
              (3)   "HEALTH CARE PROVIDER” MEANS AND INCLUDES, FOR THE PURPOSES OF [SECTIONS 1 THROUGH 8], A
   HEALTH CARE PROFESSIONAL, HEALTH CARE FACILITY, HOME HEALTH CARE FACILITY, AND ANY OTHER PERSON OR
   FACILITY OTHERWISE AUTHORIZED OR PERMITTED BY ANY FEDERAL OR STATE STATUTE, REGULATION, ORDER, OR PUBLIC
   HEALTH GUIDANCE TO ADMINISTER HEALTH CARE SERVICES OR TREATMENT. IT DOES NOT INCLUDE A GOVERNMENT
   ENTITY OR A HEALTH CARE PROFESSIONAL THAT IS EMPLOYED BY A GOVERNMENT ENTITY.
              (4)   "PERSON" MEANS AN INDIVIDUAL, CORPORATION, NONPROFIT CORPORATION, ESTATE, TRUST,
   PARTNERSHIP, LIMITED LIABILITY COMPANY, BUSINESS OR SIMILAR TRUST, ASSOCIATION, JOINT VENTURE, PLACE OF
   WORSHIP, PERSONAL REPRESENTATIVE, TRUSTEE, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY. IT DOES NOT INCLUDE
   A GOVERNMENT ENTITY.
              (4) (5)   "Personal protective equipment" includes protective clothing, gloves, face shields, goggles,
   face masks, respirators, gowns, aprons, coveralls, and other equipment designed to protect the wearer from
   injury or spread of infection or illness.
              (5) (6)   "Premises" includes any real property and any appurtenant building or structure, as well as any
   other location, vehicle, or place, serving a commercial, residential, educational, religious, governmental,
   cultural, charitable, or health care purpose.
              (6) (7)   "Public health guidance" includes guidance related to covid-19 issued by the following:
              (a)   the centers for disease control and prevention of the U.S. department of health and human
   services;
              (b)   the centers for medicare and medicaid services of the U.S. department of health and human
   services;
              (c)   the federal occupational safety and health administration;
              (d)   the office of the governor;
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              (e)   a state agency, including the department of public health and human services; or
              (f)   a local government including a local government health department or local government board of
   health.
              (7) (8)   "Qualified product" means and includes:
              (a)   personal protective equipment and supplies used to treat covid-19 or to prevent the spread of
   covid-19;
              (b)   medical devices, equipment, and supplies used to treat covid-19, including medical devices,
   equipment, and supplies that are used or modified for an unapproved use to treat covid-19 or to prevent the
   spread of covid-19;
              (c)   medical devices, equipment, and supplies used outside of their normal use to treat covid-19 or to
   prevent the spread of covid-19;
              (d)   medications used to treat covid-19, including medications prescribed or dispensed for off-label use
   to attempt to treat covid-19;
              (e)   tests to diagnose or determine immunity to covid-19; and
              (f)   a component of an item described in subsections (7)(a) through (7)(e) (8)(A) THROUGH (8)(E).
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              NEW SECTION. Section 2.         Actual injury LIABILITY. A EXCEPT AS PROVIDED IN [SECTIONS 3 THROUGH
   8], A person may not bring or maintain a civil action alleging exposure or potential exposure to covid-19 unless:
              (1)   the civil action relates to a minimum medical condition;
              (2)   the civil action involves an act that was intended to cause harm; or
              (3)    the civil action involves an act OR OMISSION that constitutes gross negligence, or willful and wanton
   misconduct, OR INTENTIONAL TORT.
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              NEW SECTION. Section 3.         Premises owner's duty of care -- limited liability. (1) A person who
   possesses or is in control of a premises, including a tenant, lessee, or occupant of a premises, who directly or
   indirectly invites or permits an individual onto a premises, shall not be IS NOT liable for civil damages for injuries
   sustained from the individual's exposure to covid-19, whether the exposure occurs on the premises or during an
   activity managed by the person who possesses or is in control of a premises, unless one or bothof the following
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   apply to the person who possesses or is in control of the premises:
              (1)   the person who possesses or is in control of the premises exposes the individual to covid-19
   through an act of gross negligenceor willful and wanton misconduct; or
              (2)   the person who possesses or is in control of the premises intentionally exposes the individual to
   covid-19 THE CIVIL ACTION INVOLVES AN ACT OR OMISSION THAT CONSTITUTES GROSS NEGLIGENCE, WILLFUL AND
   WANTON MISCONDUCT, OR INTENTIONAL TORT.
              (2)   THE STANDARD ESTABLISHED IN SUBSECTION (1) APPLIES IN LANDLORD-TENANT CLAIMS MADE UNDER 70-
   24-303(1)(B) THROUGH (1)(E) FOR INJURIES SUSTAINED FROM AN INDIVIDUAL'S EXPOSURE TO COVID-19.
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              NEW SECTION.Section 4.          Safe harbor for compliance with regulations, executive orders, or
   public health guidance.A person shall not be held liable for civil damages for injuries sustained from an
   alleged exposure or potential exposure to covid-19 if the act or omission alleged to violate a duty of care was in
   substantial compliance or was consistent withafederal or state statute, regulation, order, or public health
   guidance related to covid-19 that was applicable to the person or activity at issue at the time of the alleged
   exposure or potential exposure.
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              NEW SECTION. Section 5 4. Liability of health care providers. A health care provider shall not be
   IS NOT   liable for civil damages for causing or contributing, directly or indirectly, to the death or injury of an
   individual as a result of the health care provider's acts or omissions while providing or arranging health care in
   support of the state's response to covid-19 unless the health care provider caused the death or injury of an
   individual through an act of OR OMISSION THAT CONSTITUTES gross negligence, willful and wanton misconduct, or
   an intentional tort. This subsection SECTION applies to:
              (1)   injury or death resulting from screening, assessing, diagnosing, caring for, or treating individuals
   with a suspected or confirmed case of covid-19;
              (2)   prescribing, administering, or dispensing a pharmaceutical for off-label use to treat a patient with a
   suspected or confirmed case of covid-19;
              (3)   acts or omissions while providing health care to individuals with a condition unrelated to covid-19
   when those acts or omissions support the state's response to covid-19, including the following:
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               (a)   delaying or canceling nonurgent or elective dental, medical, or surgical procedures, or altering the
   diagnosis or treatment of an individual in response to a federal or state statute, regulation, order, or public
   health guidance;
               (b)   diagnosing or treating patients outside the normal scope of the health care provider's license or
   practice;
               (c)   using medical devices, equipment, or supplies outside of their normal use for the provision of
   health care, including using or modifying medical devices, equipment, or supplies for an unapproved use;
               (d)   conducting tests or providing treatment to an individual outside the premises of a health care
   facility;
               (e)   acts or omissions undertaken by a health care provider because of a lack of staffing, facilities,
   medical devices, equipment, supplies, or other resources attributable to covid-19 that renders the health care
   provider unable to provide the level or manner of care to a person that otherwise would have been required in
   the absence of covid-19; or
               (f)   acts or omissions undertaken by a health care provider relating to the use or nonuse of personal
   protective equipment.
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               NEW SECTION. Section 6 5.         Supplies, equipment, and products designed, manufactured,
   labeled, sold, distributed, and donated in response to covid-19. (1) A person who designs, manufactures,
   labels, sells, distributes, or donates household disinfecting or cleaning supplies, personal protective equipment,
   or a qualified product in response to covid-19 shall not be IS NOT liable in a civil action alleging personal injury,
   death, or property damage caused by or resulting from the design, manufacturing, labeling, selling, distributing,
   or donating of the household disinfecting or cleaning supplies, personal protective equipment, or a qualified
   product unless the person caused the personal injury, death, or property damage through an act of AN ACT OR
   OMISSION THAT CONSTITUTES        gross negligence, willful and wanton misconduct, or an intentional tort.
               (2)   A person who designs, manufactures, labels, sells, distributes, or donates household disinfecting
   or cleaning supplies, personal protective equipment, or a qualified product in response to covid-19 shall not be
   IS NOT   liable in a civil action alleging personal injury, death, or property damage caused by or resulting from a
   failure to provide proper instructions or sufficient warnings unless the person caused the personal injury, death,
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   or property damage through an act of OR OMISSION THAT CONSTITUTES gross negligence, willful and wanton
   misconduct, or an intentional tort.
              (3)   This section supersedes 27-1-719 for product liability claims brought for damages caused in part
   by covid-19 as defined in [section 1].
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              NEW SECTION. Section 6.         Affirmative defense -- reasonable measures consistent with
   regulations, orders, and guidance. (1) In addition to all other defenses, a person may assert as an affirmative
   defense that the person took reasonable measures consistent with a federal or state statute, regulation, order,
   or public health guidance related to covid-19 that was applicable to the person or activity at issue at the time of
   the alleged injury.
              (2)   If two or more sources of public health guidance are applicable, a person does not breach a duty
   of care if the person took reasonable measures consistent with one applicable set of guidance.
              (3)   If a person proves the affirmative defense contained in this section, the affirmative defense is a
   complete bar to any action relating to covid-19.
              (4)   This section may not be construed to impose liability on a person for failing to comply with a
   federal or state statute, regulation, order, or public health guidance related to covid-19.
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              NEW SECTION. Section 7.         Limitation on action. A government order, regulation, or guidance
   related to covid-19 may not create and may not be construed to create a new cause of action against any
   person with respect to the matters contained in the government order, regulation, or guidance.
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              NEW SECTION. Section 8. Limitation on requirements. (1) If a federal or state statute, regulation,
   order, or public health guidance related to covid-19 recommends or requires the use of a face mask, a person
   is not required to ensure face masks are being used or a face mask is sufficient to stop the spread of covid-19
   to meet the standard of care.
              (2)   If a federal or state statute, regulation, order, or public health guidance related to covid-19
   recommends or requires temperature checks, a person is not required to conduct temperature checks before
   allowing a person to enter a premises if an individual entering the premises refuses to allow a temperature
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   check.
              (3)   If a federal or state statute, regulation, order, or public health guidance related to covid-19
   recommends or requires a vaccine, an individual is not required to receive a vaccine and a person is not
   required to ensure employees or agents are vaccinated to meet the standard of care.
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              Section 10 9. Section 27-1-719, MCA, is amended to read:
              "27-1-719.    (Temporary) Liability of seller of product for physical harm to user or consumer. (1)
   As used in this section, "seller" means a manufacturer, wholesaler, or retailer.
              (2)   A person who sells a product in a defective condition that is unreasonably dangerous to a user or
   consumer or to the property of a user or consumer is liable for physical harm caused by the product to the
   ultimate user or consumer or to the user's or consumer's property if:
              (a)   the seller is engaged in the business of selling the product; and
              (b)   the product is expected to and does reach the user or consumer without substantial change in the
   condition in which it is sold.
              (3)   The provisions of subsection (2) apply even if:
              (a)   the seller exercised all possible care in the preparation and sale of the product; and
              (b)   the user or consumer did not buy the product from or enter into any contractual relation with the
   seller.
              (4)   (a) Subsection (2) does not apply to product liability claims brought for damages caused in part by
   covid-19 as defined in [section 1], which are governed by [section 3 2].
              (b)   Subse