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  • Writer's pictureBMNG Law


As measures to protect against the spread of COVID-19 have eased, the broader impact of the pandemic will come into focus in the second half of 2021. The civil liability that businesses and other organizations potentially face is one of the major issues that was raised in the early stages of the pandemic but is still in a state of uncertainty.

Missouri’s legislature took steps to address some of the uncertainty with Senate Bill 51, which was signed into law by Governor Mike Parson on July 7 and will become effective on August 28. Sponsored by Senator Tony Luetkemeyer, the legislation will have a major impact on civil litigation in Missouri and shape a new subset of lawsuits stemming from COVID-19 over the next several years. The six new sections incorporated into Chapter 537 RSMo through SB 51 are set to expire August 28, 2025, four years after their effective date. See §537.1005 RSMo.

Defining the causes of action (§537.1000 RSMo)

The law defines three causes of action related to COVID-19: (1) exposure liability, (2) medical liability, and (3) products liability. Civil liability related to exposure, medical treatment, and products is nothing new. Toxic torts, medical malpractice, and products liability have constituted a significant portion of civil litigation for many years. The legislation creates additional protection against liability arising from the unique, unprecedented circumstances resulting from COVID-19.

Negligence causing exposure (§537.1005 RSMo)

To prevail on an action alleging negligent exposure, the plaintiff must prove by clear and convincing evidence that the defendant engaged in recklessness or willful misconduct that caused actual exposure to COVID-19, and the actual exposure caused personal injury to the plaintiff. A plaintiff must prove intentional misconduct in an action brought against a religious organization. See §537.1005.2 RSMo.

Under §537.100.15 RSMo, “recklessness” is defined as “a conscious, voluntary act or omission in reckless disregard of: (a) [a] legal duty; and (b) [t]he consequences to another party[.]” “Willful misconduct” is “an act or omission that is taken: (a) [i]ntentionally to achieve a wrongful purpose; or (b) [i]n disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.” §537.1005.17 RSMo.

There is a rebuttable presumption of an assumption of risk by a plaintiff in a COVID-19 exposure action when a defendant posts or maintains signs or provides a written Warning notice. See §537.1005.3 RSMo. The Warning must read: “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.” §537.1005.3 RSMo. Additionally, the new law addresses remedial measures to policies, practices, or procedures regarding COVID-19. See§537.1005.4 RSMo. Much like the rules limiting admissibility of subsequent remedial measures as evidence to support liability in other negligence actions, the legislation states that no adoption or change of policies or procedures regarding COVID-19 may be considered evidence of liability. Id. Finally, claims for negligence causing exposure to COVID-19 must be commenced within two years of the alleged exposure. See §537.1035.4 RSMo.

Medical liability (§537.1010 RSMo)

To make a claim pursuant to §537.1010 RSMo, a plaintiff must prove recklessness or willful misconduct of a healthcare provider caused the alleged harm, damage, breach, or tort and resulted in injury. See §537.1010.1(1)-(2) RSMo. Good cause postponement of elective medical procedures is expressly excluded. See §537.1010.2 RSMo(emphasis added). Actions brought under §537.1010 RSMo must be commenced within one year of the discovery of the alleged harm caused by the healthcare provider. See §537.1035.5 RSMo.

Products liability (§537.1015 RSMo)

This section only applies to products that were administrated or used for the treatment of or protection against COVID-19. See §537.1035.5 RSMo. To prevail in a COVID-19 products liability action, a plaintiff must prove, by clear and convincing evidence, recklessness or willful misconduct by the defendant and demonstrate that such recklessness or misconduct caused the personal injury. See §537.015.2 RSMo. These actions must be commenced within two years of the alleged harm unless the plaintiff can demonstrate fraud or intentional concealment. See §537.1035.6 RSMo.

Additionally, no defendant who designs, manufactures, imports, distributes, labels, packages, leases, sells, or donates a covered product will be liable in a COVID-19 products liability action if the defendant (1) does not make the covered product in the ordinary course of business; (2) does make the covered product in the ordinary course of business and the emergency required the product to be made in a modified manufacturing process that is outside the ordinary course of business; or (3) does make the covered product in the ordinary course of business and use of the covered product is different from its recommended purpose and used in response to the COVID-19 emergency. See §537.1015.1 RSMo. The statute does not apply to fraud in connection with the advertisement of any covered product. See §537.1015.3 RSMo.

Punitive damages (§537.1020 RSMo)

The law allows for award of punitive damages, but the amount is capped at nine times the amount of the compensatory damages award. See §537.1020 RSMo. Legislation addressing punitive damages, including that passed in 2020, still applies to any claims for punitive damages arising out of these actions. This means, among other things, that a claim for punitive damages cannot be made in an initial Petition and may only be requested in a written motion with permission of the court. See §510.261(5) RSMo.

The attorneys at Behr, McCarter, Potter, Neely & Hyde, P.C. are experienced in representing businesses and insurers in state and federal trial and appellate courts in Missouri and Illinois. If you have questions about a litigation matter, please do not hesitate to contact our office for assistance.

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