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AB-1759 Institutions of higher education: liability for COVID-19-related injuries.(2019-2020)



Current Version: 08/17/20 - Amended Senate Compare Versions information image


AB1759:v95#DOCUMENT

Amended  IN  Senate  August 17, 2020
Amended  IN  Senate  June 29, 2020
Amended  IN  Assembly  May 17, 2019
Amended  IN  Assembly  March 28, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1759


Introduced by Assembly Member Salas

February 22, 2019


An act to add Chapter 7 (commencing with Section 99400) to Part 65 of Division 14 of Title 3 of the Education Code, relating to institutions of higher education.


LEGISLATIVE COUNSEL'S DIGEST


AB 1759, as amended, Salas. Institutions of higher education: liability for COVID-19-related injuries.
Under existing law, the segments of public higher education in this state consists consist of (1) the California Community Colleges, (2) the California State University, and each campus, branch, and function thereof, and (3) each campus, branch, and function of the University of California. Existing law establishes as a segment of higher education in this state the independent institutions of higher education, which are those nonpublic higher education institutions that grant undergraduate degrees, graduate degrees, or both, and that are formed as nonprofit corporations in this state and are accredited by an agency recognized by the United States Department of Education.
Existing law provides that no monetary liability and no cause of action arises arise against specified entities for certain conduct, including, except for specified damages, for a hospital for any action taken upon the recommendation of its medical staff, or against any other person or organization for any action taken, or restriction imposed, which is required to be reported, if that action or restriction is reported, as specified.
This bill would exempt the public and independent institutions of higher education, and their officers, employees, and governing bodies that meet specified conditions, from monetary liability and damages for injury relating to COVID-19 infection, any condition in existence because of the COVID-19 pandemic, or any act or omission by those institutions, their officers, their employees, or their governing bodies in response to the COVID-19 pandemic, illness, or death, as provided. provided, with specified exceptions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 It is the intent of the Legislature in enacting this chapter to clarify the legal standard of liability for institutions of higher education, designated as part of the critical infrastructure, related to COVID-19 as they plan to return to campuses.

SEC. 2.

 Chapter 7 (commencing with Section 99400) is added to Part 65 of Division 14 of Title 3 of the Education Code, to read:
CHAPTER  7. Limitation of Liability for COVID-19-Related Injuries

99400.
 (a) As used in this chapter, the following definitions apply:
(1) “COVID-19 guidance” means any of the following issued in connection with the COVID-19 pandemic:
(A) Federal or state regulations, orders, or guidance.
(B) Presidential or gubernatorial executive orders.
(C) Orders or guidance provided by applicable local public health agencies, cities, or counties.
(2) “Institution of higher education” means an institution of public higher education or an independent institution of higher education as defined in Section 66010.
(b) There shall be no monetary liability on the part of, and no cause of action for damage shall arise against, an institution of higher education, or its officers, employees, or governing bodies bodies, that meets the conditions of paragraph (2) of subdivision (c) for injury relating to COVID-19 infection, any condition in existence because of the COVID-19 pandemic, or any act or omission by the institution of higher education, its officers, its employees, or its governing bodies in response to the COVID-19 pandemic, illness, or death, notwithstanding any law that might impose that liability, including, but not limited to, any provision contained in Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, and Section 1708 of, and subdivision (a) of Section 1714 of, the Civil Code. The limitation of liability applies, but is not limited to, all of the following claims or causes of action:

(1)For recovery for injury, emotional distress, damage, death of a person, or economic loss.

(2)For breach of contract, an action brought pursuant to Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of, or Article 1 (commencing with Section 17500) of Chapter 1 of Part 3 of Division 7 of, the Business and Professions Code, an action based on any of the grounds in Section 1689 of the Civil Code, or an action brought pursuant to Title 1.5 (commencing with Section 1750) of Part 4 of Division 3 of, including Section 1781 of, the Civil Code.

(3)For a claim for injury, damage, or economic loss for a cancellation or modification of a program or activity of the institution of higher education, if the change was due in part to COVID-19, including public health orders that restricted the activities of the institution of higher education, including allowing only online education.

(c) (1) Subdivision (b) does shall not apply to a claim for damages caused by intentional misconduct, wanton or reckless misconduct, gross negligence, or willful and wanton negligence committed by an institution of higher education, its officers, its employees, or its governing bodies if both of the following conditions exists: bodies.

(A)The alleged negligence or misconduct is proven by clear and convincing evidence to have resulted in the transmission of COVID-19 that led to the injury, emotional distress, damage, death of a person, or economic loss.

(B)The action is not brought pursuant to Section 382 of the Code of Civil Procedure.

(2) Notwithstanding paragraph (1), subdivision (A) Subdivision (b) shall only apply in a civil action for gross negligence, willful and wanton negligence for injury, emotional distress, damage, death of a person, or economic loss related to COVID-19 if the alleged act or omission of if the institution of higher education complied substantially with with, or operated in a manner that was consistent with with, applicable public health and safety COVID-19 guidance applicable to the institution of higher education at the time of the alleged act or omission. If guidance.
(B) If two or more sources of conflicting COVID-19 guidance are applicable to the same alleged act or omission, this paragraph applicable, subdivision (b) shall only apply if the act or omission at issue by the institution of higher education complied substantially with, or operated in a manner that was consistent with any with, the most rigorous public health and safety COVID-19 guidance in effect at the time of the act or omission. guidance.
(d) This section shall apply to a cause of action for injury or claim alleged to have been sustained or to have occurred on or after the Governor’s March 4, 2020 Proclamation of a State of Emergency, during any stage of the COVID-19 pandemic. only during the time period in which a federal, state, or local declaration of emergency exists that is related to the outbreak and spread of the illness commonly referred to as COVID-19 is in effect.
(e) (1) This section shall not modify or affect a any employment law claim by an employee, including a student employee, of an institution of higher education pursuant to Division 4 (commencing with Section 3200) of the Labor Code, which establishes the sole and exclusive remedial scheme for employees of a higher educational institution who have incurred an injury that arose out of and in the course of employment. for an injury sustained in the course and scope of employment.
(2) This section applies Subdivision (b) shall apply to a claim by an employee of an institution of higher education, including a student employee, that did not arise out of and in the course of the employment. employment, but would otherwise be encompassed by subdivision (b) as a COVID-19-related claim.
(3) Except as otherwise expressly stated in this section, this section shall not apply to an institution of higher education’s existing duties to employees or any remedies that an employee may have under a collective bargaining agreement.