Proposals for COVID Liability Protection, New Prison Get Public Hearings

Feb. 18, 2021, 6:09 p.m. ·

Nebraska Capitol (Photo by Fred Knapp, NET News)

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A proposal to protect businesses and others from lawsuits over COVID drew pushback from opponents in a legislative hearing Thursday. And a proposal to build a new prison ran into skeptical questions and opposition.

Sen. Tom Briese introduced a bill to make it more difficult to sue businesses and others if someone gets COVID. Briese said it’s needed to promote economic recovery.

“As they struggle to recover from the impact of the pandemic, our businesses, our educational institutions, our healthcare providers, our schools are faced with the threat of unwarranted, needless lawsuits,” Briese said.

Briese’s bill would raise the standard of proof needed for a successful lawsuit. Someone could still be found liable, but only for gross negligence or willful misconduct, and only if the person who got COVID was hospitalized or died. It would not affect employer-employee relations, which are governed by workers’ compensation.

Attorney Mark Schorr, representing a coalition of business, insurance, medical, cities, grocery and trucking groups, supported the bill. Schorr acknowledged that it could be difficult to prove where someone got COVID, but said the costs of defending against such lawsuits could be unsustainable.

Sen. Terrell McKinney asked Schorr if his argument showed misplaced priorities.

“Are we putting dollars over people? What’s the rush if, one, we don’t know the long-term effects of this virus, two, we have zero protections for the most vulnerable currently – we’re not distributing the vaccine to the most vulnerable communities currently anyway. It’s just a lot that is going on that’s not talked about. So are we putting dollars over people?” McKinney asked.

“I don’t believe so, Sen. McKinney. And we need to remember that this doesn’t just cover businesses. This covers nonprofits, religious organizations, public venues, hospital industry, the schools. It also covers governmental entities. So I think it’s designed to give a reasonable degree of protection to all those types of individuals and entities to be able to try to return to life as normal and not be threatened with the cost of defending a whole bunch of lawsuits,” Schorr replied.

Todd Stubbendieck, representing AARP Nebraska, opposed the bill. Stubbendieck said more than 1,000 nursing home patients in Nebraska have already died from COVID, half the state’s total deaths from the disease. And Attorney Shayla Reed said limiting cases to people who had been hospitalized or died would give nursing homes an incentive not to send people who needed care to the hospital. That led Sen. Julie Slama to question Reed.

“Nursing homes aren’t in the business of killing grandma. If they decide under this bill that grandma doesn’t somehow need to go to the hospital and grandma dies as a result of that, this wouldn’t exempt the nursing home from that liability, would they?” Slama asked.

“No, you’re absolutely right. In extreme cases, not sending her to the nursing home if she dies anyway they’re on the hook. But if she survives COVID and suffers, and doesn’t get hospital care but suffers and survives…there’s an incentive not to transfer them out to the hospital,” Reed replied.

Opposing the bill for the North Central States Regional Council of Carpenters, Felicia Hilton said the burden of proof would be too high. “It really puts the burden on the average person, to really be able to go to court and state their case, and have to prove the willful negligence and misconduct of a business, would be really hard for the regular person,” Hilton said.

Dallas Jones, supporting the proposal for the Lincoln Independent Business Association, suggested it was a preventative measure.

“While we haven’t seen a flood of lawsuits as a result of COVID, this bill deals with the threat of a possibility of the flood to come in the future. So as our state begins to open up, we must keep in mind that the threat of lawsuits would make it difficult for businesses to reopen, and that litigation could lead some to close permanently,” Jones said.

But Sen. Steve Lathrop said the proposal seeks to address a problem that doesn’t exist.

“It’s concerning to me that we’re here over the fear of the threat of a possibility, and somebody’s creating that fear,” Lathrop said.

Lathrop said it sounds like insurance companies are threatening businesses that their coverage won’t include COVID, and suggested people concerned about that should address those threats instead. The committee took no immediate action on the proposal.

Thursday afternoon, the Appropriations Committee heard a proposal to build a new 1,500 bed prison for $230 million. Corrections Director Scott Frakes acknowledged it’s a big ask.

“The decision to invest in a new prison is not an easy one. It is however a necessary one,” Frakes said.

Frakes cited overcrowding and outdated facilities at the Nebraska State Penitentiary as driving the need for a new prison. But Committee Chairman Sen. John Stinner suggested there hasn’t been enough study of the need.

“All of a sudden I feel kind of rushed to make a decision that I’m saying whoa, wait a minute. I’m not sure I’m capable right now, I’m not sure this committee’s capable of making a decision long-term like this without getting input from a lot of different folks, different disciplines, different people,” Stinner said.

Other senators expressed concerns about whether a new prison could be staffed, when there are already vacancies and high turnover among prison staff. Frakes said locating the prison in a place where staff could be found would be a top priority, adding that a new facility would be a more attractive place to work.

Several groups showed up to oppose the proposal, including Heartland Family Service, a social service agency. Heartland’s Maggie Ballard said the state needs to invest more in preventative services to reduce prison populations long-term.

“While we are all for reducing overcrowding and ensuring humane living conditions for prisoners, that’s not how we view this issue. Instead (it’s) about putting money into corrections and locking away people whose crimes oftentimes could have been prevented if our state had invested in people to begin with,” Ballard said.

A coalition of opposition groups has announced a protest against the new prison for 2 p.m. Sunday at the Capitol. A decision on what to do is expected to be one of the major issues confronting the Legislature this year.