Bill protecting Montana schools from COVID-19 lawsuits heads to Senate

HELENA - A bill that would provide Montana’s public sectors from frivolous COVID-19 lawsuits is soon heading into the state Senate. House Bill 435 passed on its third reading 67-32 in the Montana House of Representatives March 1. Bill sponsor Rep. Bill Mercer (R-Billings) said that part of the motivation behind the bill is to make it easier for schools and public services in the state to re-open.

“If we are going to move forward and reopen activities as we have traditionally known them, when entities are making best efforts to do things in a reasonable way, we need to ensure that they aren’t going to be liable when they have engaged in that conduct,” Mercer said during the bill’s second reading.

Rep. Robert Farris-Olsen (D-Billings) spoke out in opposition against the bill during its second reading for two main reasons. The first was that the bill would fundamentally change the obligations of public sectors because it would lower the standard of care in preventing harm to others.

“No longer do those entities have to act as a reasonable person or a reasonable entity. They can act less than reasonably in engaging in efforts to protect or not protect those individuals,” he said. “So when we talk about protecting school districts, protecting government facilities, all of that, we are now saying they do not have to act reasonably to protect the employees or the students in those facilities with respect to COVID-19. … We should be doing everything we can to protect our community, our students, our employees.”

Mercer responded that public entities have been doing their best to provide protection to staff and visitors.

Farris-Olsen’s other reason was that the bill “conveniently” left out correctional facilities which would also fall under the public sector.

Schools would still be protected from lawsuits if they have in-person classes or allow students and up to six guests per student to attend extracurricular events including graduation ceremonies.

These protections also apply to landlords, state and local governments, and healthcare providers. According to the bill, healthcare providers are not liable for civil damages for causing or contributing, directly or indirectly, to the death or injury of an individual while providing or arranging health care.

Protected actions can include screening, assessing, diagnosing, caring for or treating individuals with a suspected or confirmed COVID-19 case as well as prescribing pharmaceuticals. It also covers treating conditions unrelated to COVID-19.

The bill also has a section that states if a Federal or state statute recommends or requires the use of face masks or temperature checks, then a government entity is not required to ensure these are being used. The section also has it so that individuals are not required to receive a vaccine and government entities are not required to ensure employees are vaccinated.

Entities can be held liable if their actions or omissions constitute “willful and wanton misconduct, or intentional tort.” The bill raises the liability threshold for civil lawsuits from “negligence” to “gross negligence.”

On their website, the Sawaya Law Firm defines negligence as someone failing to take “the reasonable precautions that any prudent person would take” with their actions resulting in the harm of someone else. Gross negligence is “the extreme indifference to or reckless disregard for the safety of others.” Additionally it is considered “willful behavior done with extreme disregard for the health and safety of others.”

House Bill 435 has similarities to Senate Bill 65 which provided liability protection to the private sector. Governor Greg Gianforte signed it into law in February.

Sarina Gilpin, owner of Deer Country Quilts, said she was in favor of businesses not having a liability attached to them if they are mandating masks or not.

“Holding businesses, schools, churches, etc. liable for the spread of an airborne virus is not rational,” Gilpin wrote in an email. “Obviously even before COVID, I don’t believe that if somebody’s sick that they should be going to work. … So knowing that you’re sick going in and negligently exposing people should weigh in, but I think that we all also make choices of where we go. If you walk into a business and you don’t like the way that they’re handling things, the precautions they are or aren’t taking, for me, I would just leave if I wasn’t comfortable.”

House Bill 435 can be read in full at https://legiscan.com/MT/text/HB435/2021.