February 23, 2021
Joseph H. Langerak IV
Member, Stoll Keenon Ogden PLLC
Donn H. Wray
Counsel to the Firm, Stoll Keenon Ogden PLLC
On February 18, 2021, Indiana Governor Eric Holcomb signed Senate Enrolled Act 1 (the “Bill”) into law, providing legal immunity to businesses from torts causing damages “arising from COVID-19.” The Bill provides businesses and individuals with immunity from civil liability if someone is exposed to COVID-19 on their property or during an activity they organized.
The Bill as originally proposed provided total immunity for businesses and individuals from all civil suits related to COVID-19. However, the Bill ultimately passed and signed into law only covers tort immunity – those COVID-19 acts or omissions that give rise to injury or harm to another. The Bill was also narrowed to use the “arising from” COVID-19 language rather than “related to” language.
In Indiana, the applicable tort theory from which the Bill intends to protect businesses and individuals is negligence liability for acts or omissions arising from COVID-19 ; i.e., that the defendant business breached a duty to take measures to contain COVID-19, resulting in harm to the plaintiff in the form of infection. The Bill does not relate to, or protect businesses or individuals from, claims sounding in contract – such as breach of contract or breach of lease.
While the Bill does provide exceptions to civil immunity for “gross negligence or willful or wanton misconduct,” its umbrella of protection is very broad. It provides civil tort immunity for all types of businesses, including restaurants, bars, stores, hospitals, nursing homes, schools, government offices, and businesses that manufacture any COVID-19 protection products. The law will effectively insulate businesses from their own actions and inactions that caused injury to patrons, customers, or other invitees arising from COVID-19, which is a very hefty shield.
As of the writing of this article, the authors are not aware of any tort lawsuits in Indiana against businesses for injuries arising from COVID-19. Nonetheless, the protection afforded by the Bill is both retroactive and forward looking – legal immunity is retroactive to March 1, 2020 and extends through December 31, 2024.
SKO will continue to monitor the use and practical application of this law across Indiana.
Stoll Keenon Ogden PLLC (SKO) understands that these are trying times for our clients and our country. Our firm operations have continued uninterrupted and our attorneys are equipped to serve as we always have – for more than 120 years.
Stoll Keenon Ogden’s Business Litigation practice provides strategic advice to businesses and professionals faced with disputes, lawsuits, arbitration and other conflicts. We help manage disputes on the front end with guidance on sound business practices. For conflicts that could not be resolved early, we help clients through even the most complex, high-stakes disputes with a careful, focused and strategic approach.
Please also be sure to consult the Stoll Keenon Ogden’s Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state and local governments in response to the Coronavirus pandemic.