By: Cody Bauer
On February 25, 2021, Governor Tony Evers signed Wisconsin Act 4, a new law that protects certain entities from civil liability against claims related to COVID-19. With the passage of Act 4, Wisconsin joins the ever-growing list of states that have enacted similar laws that protect businesses from COVID-19 lawsuits, including Alabama, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Montana, Nevada, North Carolina, Ohio, Oklahoma, South Dakota, Tennessee, Utah, and Wyoming.1
What is the Impact?
Wisconsin’s COVID-19 liability immunity law allows businesses to operate knowing they may have some protection from civil liability. Notwithstanding the passage of these statutes, businesses still should remain mindful of federal, state, and local mandates and public health guidelines related to COVID-19.
The statute, in part, reads: “Beginning March 1, 2020, an entity is immune from civil liability for the death of or injury to any individual or damages caused by an act or omission resulting in or relating to exposure, directly or indirectly, to … COVID−19 in the course of or through the performance or provision of the entity’s functions or services.”2
Who is Covered?
“Entity” is defined broadly under the law to include a:
- governmental entity,
- tribal government,
- tribal entity, or
- other legal entity (school, institution of higher education, or nonprofit organization).
The Act also grants immunity to employers or business owners, employees, agents, independent contractors, and paid or unpaid volunteers of a covered entity.3 In a general sense, the new law protects these entities from civil liability should a resident, customer, student, or other individual contract COVID-19 through the performance or provision of the entity’s functions or services.
What are the Liability Exceptions?
The entity is not immune from liability, however, if it acts with reckless or wanton conduct or intentional misconduct.4 While not defined in the statute, Wisconsin courts have previously defined “recklessness” as “a conscious disregard of an unreasonable and substantial risk of serious bodily harm to another,”5 and finding “wanton action” as that which is unreasonable and dangerous with a high probability of harm to another.6
What constitutes reckless or wanton conduct within the context of COVID-19-related injuries is an interesting question and will need to be determined by Wisconsin courts as covered entities begin to exercise these new protections.
Wisconsin’s new law affords businesses
some of the broadest COVID-19
civil liability immunity in the country.
Specifically, while many of other states require a business to show reasonable adherence to, or a good faith effort to follow, public health guidance in order to receive the immunity protection, Wisconsin’s new law has no such explicit requirement.
What Laws Exist in Minnesota?
Though no civil immunity law currently exists in Minnesota, the Minnesota State Senate has introduced Senate File No. 512, which would provide civil immunity to healthcare providers, first responders, and healthcare facilities from COVID-19-related lawsuits.
Questions? We’re Here to Help
HKM’s attorneys continue to monitor emerging issues and passage of new legislation. If you have questions about how this new development may impact you, please contact the author or your HKM attorney at (651) 227-9411.