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Relating to liability for certain claims arising during a pandemic
or disaster related to a pandemic.
No significant fiscal implication to the State is anticipated.
SB 6 represents an effort to provide civil liability protections for large and small businesses, religious institutions, non-profit entities, healthcare providers, first responders, and educational institutions during a declared pandemic or disaster related to a pandemic, except in cases of reckless conduct or intentional misconduct. The bill would also provide civil liability protections to a person who designs, manufacturers, sells, labels, or donates certain products that have a defect or inadequate instructions unless the person had knowledge of the issue and acted with actual malice.
The provisions of this bill would apply to any action commenced on or before March 13, 2020 for which a judgment has not become final before the effective date of the bill.
We absolutely support creating civil liability protection during a time of pandemic disaster. However, that protection should be nuanced. As currently written, the protections created by this bill are too broad in some areas and too narrow in others.
With respect to most private entities, liability protection should not in any way be conditioned on adherence to government recommendations. Government recommendations vary widely across levels of government from municipal to county, state, and federal. Recommendations at all levels of government also change over time, sometimes rapidly. If liability protection is in any way dependent on adherence to government regulations, guidance, or recommendations, there is little chance most business owners will be able to know whether they are protected from liability or not. Recommendation: Amend to protect all private entities from liability regardless of government recommendations or guidelines. This would allow individuals to opt to enter a business at their own risk.
With respect to health care providers, liability protection should not necessarily be the same during the crisis point of a pandemic as it is later when things are more stable and more is known about the disease. At the time of this writing there are fewer than 2,200 people hospitalized with COVID 19 in all of Texas. We have passed the crisis stage and complete immunity from liability for health care providers at this time may not be appropriate. Recommendation: Consider adjusting liability protections for the healthcare industry based on the actual crisis condition of the pandemic over time.
Finally, we are concerned that the legislative findings under Section 4 of the bill would effectively act as an endorsement of executive branch action taken throughout the pandemic. We are concerned that executive power has been overreached and encourage the legislature to limit future executive action rather than endorse past and ongoing executive action. Recommendation: Amend to strike Section 4 entirely.