Senate Bill 5 Officially Enacted Into Kentucky Law

Certain individuals and businesses can now enjoy liability protection from COVID-19 related claims.  Senate Bill 5, which protects qualifying Kentucky businesses, schools and individuals from liability for claims relating to the COVID-19 pandemic, was officially enacted into Kentucky law earlier this week. Wyatt attorneys, Douglas L. McSwain and Michael N. Fine, both played a role in passing of the bill.  McSwain and Fine worked with the Kentucky Chamber of Commerce, Senator Robert Stivers and his staff to help get Senate Bill 5 enacted in both the Kentucky Senate and House.  McSwain also prepared a Memorandum analyzing the constitutionality questions that some lawmakers might raise with respect to Senate Bill 5.  The Constitutionality Memorandum was ultimately submitted to Governor Beshear right after the General Assembly enacted Senate Bill 5, and may have been instrumental in preventing a potential gubernatorial veto. The full Constitutionally Memorandum is available here. 

Specifically, the new law alters legal duties under tort law owed by business premises owners who follow government orders or guidelines and who invite or permit persons to come onto their premises during the declared COVID-19 emergency.  Such premises owners do not “extend any assurance that the premises are safe from any risk of exposure to COVID-19,” do not “owe a duty to protect from or warn about any risk related to or caused by COVID-19,” and do not “assume responsibility, or incur liability, for any alleged injury, loss, or damage to persons or property arising from a COVID-19 claim.” 

Senate Bill 5 also affords liability protections not just for business premises owners, but for “essential service providers,” affording these providers with immunity from claims arising out of the conditions of the COVID-19 pandemic.  Senate Bill 5 provides a list  of “essential service providers” which includes those that Governor Beshear included in his original declaration of a COVID-19 emergency on March 6, 2020, as well as the following: child care and health care providers; financial institutions; organizations that provide charitable and social services; individuals and businesses that produce, supply and prepare food; and elementary and secondary schools, whether public or private.

Senate Bill 5 prescribes the statute of limitations for COVID-19 claims and the accrual of such claims.  Moreover, the bill applies retroactively to March 6, 2020 – the date of Governor Beshear’s original declaration of a state of emergency due to COVID-19 in the Commonwealth. Senate Bill 5’s liability protections cover injury or harm occurring on or after the emergency declaration and lasts until the emergency declaration is lifted.

Notably, Senate Bill 5 does not protect businesses or individuals that act with gross negligence, that engage in wanton, willful, malicious or intentional misconduct or that disregard executive orders or governmental guidelines relating to the pandemic.  Therefore, businesses and individuals should make sure that they remain in compliance with applicable governmental recommendations and state and federal orders to benefit from this new law.