Federal Legislation Shielding Businesses and Individuals from Tort Liability: A Legal and Historical Overview

Legal Sidebari

Federal Legislation Shielding Businesses and

Individuals from Tort Liability: A Legal and

Historical Overview

May 8, 2020

When a person believes that he or she has sustained an injury because of someone else’s negligent or

wrongful conduct, the injured party can potentially file a tort lawsuit seeking money damages from the

alleged wrongdoer. In recent months, many plaintiffs have filed tort lawsuits alleging that they contracted

COVID-19 or otherwise sustained COVID-19-related injuries because of someone else’s unlawful

conduct. For example, after a Walmart employee contracted COVID-19 and died, his brother filed a

lawsuit alleging that Walmart caused the employee’s death by negligently failing to provide him with

personal protective equipment, enforce social distancing guidelines, and disinfect the store.

Policymakers and commentators have debated whether Congress should enact legislation reducing

defendants’ potential exposure to COVID-19-related tort liability. While some maintain that businesses

and individuals need liability protections to induce them to reopen the economy without fear of litigation,

others claim that offering such protections would allow businesses to endanger their employees and the

public with impunity. The Senate Committee on the Judiciary has scheduled a hearing on May 12, 2020 to

explore these issues, and some Members have introduced legislation proposing to modify the tort liability

rules that apply in COVID-19-related cases.

Although the development of tort law is left largely to the States, Congress has sometimes enacted federal

legislation that shields certain defendants from tort liability. This Sidebar catalogues and briefly

summarizes several federal statutes that either insulate particular entities from tort liability or otherwise

displace the state tort rules that would ordinarily apply. Given their brevity, the summaries in this Sidebar

do not necessarily capture all the nuances of these statutes. This Sidebar also does not comprehensively

list all federal tort statutes that preempt or otherwise affect state tort law. The Sidebar concludes by

identifying legal issues that Congress may consider if it decides to enact a similar statute protecting

certain entities from COVID-19-related liability—or, for that matter, any statute intended to displace or

modify state tort law.

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Examples of Federal Statutes That Displace or Affect

State Tort Law

The National Swine Flu Immunization Program of 1976

Congress enacted the National Swine Flu Immunization Program of 1976 (Swine Flu Act) in response to

a swine flu outbreak in the mid-1970s. To encourage agencies, organizations, and individuals to develop,

produce, and administer a vaccine to control the outbreak, Congress found it “necessary to protect” those

entities from lawsuits filed by persons injured or killed by the vaccine. The Swine Flu Act therefore

barred such plaintiffs from suing allegedly liable manufacturers, distributors, and healthcare personnel

directly. Instead, the Swine Flu Act required injured parties to seek compensation from the United States.

Under specified circumstances, however, the Swine Flu Act also empowered the United States to later sue

the responsible manufacturers, distributors, and healthcare professionals to recover the damages it paid to

injured parties, as well as its litigation costs.

The National Childhood Vaccine Injury Act of 1986

As an alternative to tort litigation, the National Childhood Vaccine Injury Act of 1986 (NCVIA)

establishes a no-fault compensation program for persons injured by various vaccines. The NCVIA bars

plaintiffs from filing certain vaccine-related tort lawsuits until (1) they have filed a petition for

compensation in the United States Court of Federal Claims, and (2) the court has ruled on that petition. If

the plaintiff then elects to file a tort lawsuit rather than accepting the amount of money awarded by the

court, the defendant enjoys various protections from tort liability.

The Westfall Act

Congress has enacted several statutes that insulate federal employees from tort liability under specified

circumstances. The most comprehensive of these statutes is the Federal Employees Liability Reform and

Tort Compensation Act, also known as the Westfall Act. The Westfall Act generally requires plaintiffs

injured by torts committed by federal employees acting within the scope of their employment to seek

compensation from the federal government, rather than from the individual employees personally.

The Bill Emerson Good Samaritan Food Donation Act

Subject to certain exceptions, the Bill Emerson Good Samaritan Food Donation Act shields various

entities that donate food or grocery products to nonprofit organizations from liability for injuries caused

by those donated products.

The Volunteer Protection Act of 1997

Subject to various conditions and exceptions, the Volunteer Protection Act of 1997 (VPA) shields

individuals who volunteer for nonprofit organizations or governmental entities from liability for injuries

resulting from their acts or omissions. The VPA also contains similar provisions that protect pilots who fly

for public benefit. When the VPA does not categorically insulate volunteers from liability, the VPA limits

their liability for noneconomic losses.

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The Biomaterials Access Assurance Act of 1998

Congress enacted the Biomaterials Access Assurance Act of 1998 (BAAA) to “assure the continued

supply of materials for lifesaving medical devices.” Among other things, the BAAA provides that “a

biomaterials supplier shall not be liable for harm to a claimant caused by an implant” except under

specified conditions.

The Y2K Act

The Y2K Act modified the legal rules that applied to various lawsuits related to the Y2K computer glitch.

As relevant here, the Y2K Act limited the monetary damages that plaintiffs could recover in certain Y2Krelated tort lawsuits.

The Air Transportation Safety and System Stabilization Act

Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA) to assist the air

travel industry and other stakeholders following the September 11th terrorist attacks. Among other things,

the ATSSSA (1) limited the liability exposure of various entities—including air carriers, aircraft

manufacturers, and airport sponsors—for damages resulting from the September 11th attacks; and

(2) created the September 11th Victim Compensation Fund to compensate people injured or killed in the

attacks.

The SAFETY Act

The Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act) limits the

liability exposure of “[a]ny person or entity that sells or otherwise provides” certain anti-terrorism

technologies to the federal government or to various other customers. Among other things, the SAFETY

Act also creates a rebuttable presumption that the government contractor defense will bar such claims

under specified conditions.

The Project BioShield Act of 2004

The Project BioShield Act of 2004 (BioShield Act) protects certain government contractors hired to

perform, administer, or support anti-terrorism countermeasure research and development activities. The

BioShield Act accomplishes this by treating those contractors like federal employees under the Westfall

Act described above. Plaintiffs therefore cannot sue these contractors directly, but must instead seek

compensation from the United States. If a contractor protected by the BioShield Act commits gross

misconduct or violates its contract with the federal government, however, the United States may later sue

that contractor to recover its litigation costs and the damages it paid to the injured party.

The Protection of Lawful Commerce in Arms Act

The Protection of Lawful Commerce in Arms Act (PLCAA) prohibits plaintiffs from filing certain tort

lawsuits against gun manufacturers or sellers based on the unlawful misuse of a firearm by the plaintiff or

another person. As part of the PLCAA, Congress also enacted the Child Safety Lock Act of 2005 (CSLA),

which, among other things, affords certain liability protections to firearm owners who secure their

weapons with gun storage or safety devices.

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The PREP Act

Subject to various exceptions and conditions, the Public Readiness and Emergency Preparedness Act

(PREP Act) shields manufacturers, distributors, healthcare providers, and other entities from liability for

injuries resulting from the use or administration of certain medical products during a public health

emergency. The PREP Act also created a fund called the Covered Countermeasure Process Fund to

compensate injured persons who cannot obtain compensation through litigation because of the PREP

Act’s liability shield provisions. A separate CRS product analyzes the PREP Act in greater detail.

The CARES Act

Under specified circumstances, Section 3215 of the Coronavirus Aid, Relief, and Economic Security Act

(CARES Act) shields healthcare professionals from liability for acts or omissions they commit while

performing volunteer healthcare services during the COVID-19 emergency.

Section 3103 of the CARES Act also added certain respiratory protective devices to the list of products

covered by the PREP Act.

Considerations for Congress

Proposals to modify tort law implicate a number of interests and concerns. On one hand, limiting an

entity’s exposure to litigation and liability can protect that entity from the cost and inconvenience of

defending against lawsuits and paying monetary judgments, allowing that entity to devote its time and

resources to socially beneficial endeavors. Relatedly, mitigating an entity’s liability exposure can

encourage that entity to engage in high-risk but socially desirable activities, such as providing healthcare

services during a public health emergency. On the other hand, insulating parties from liability can prevent

injured persons from obtaining compensation for their injuries and remove or weaken legal deterrents to

careless or wrongful acts or omissions.

If Congress decides to develop and pass legislation insulating particular entities from COVID-19-related

tort liability—or, for that matter, any legislation that affects state tort law—it may consider several legal

issues. First, because the federal government is a government of limited powers, any legislation that

Congress passes must fall under one of Congress’s enumerated powers in the Constitution, like the

Interstate Commerce Clause or the Spending Clause. That constitutional constraint on Congress’s power

may limit not only the types of tort legislation that Congress can enact, but also the scope of that

legislation. For instance, if Congress invokes the Interstate Commerce Clause as its exclusive source of

authority for a COVID-19-related tort law, Congress will only possess the authority to regulate

(1) activities that substantially affect interstate commerce; (2) the channels of interstate commerce;

(3) instrumentalities of interstate commerce; and (4) people or things in interstate commerce.

Congress may also consider how it wants the legislation to interact with existing state tort law. The

Constitution’s Supremacy Clause empowers Congress to preempt—that is, displace—state laws that are

inconsistent or irreconcilable with federal statutes. Congress can consider including an express

preemption clause in its legislation that precisely specifies the extent to which the statute supersedes state

tort statutes and doctrines. Such a clause could take various forms, such as one that completely supplants

state law, or one that creates a minimum federal standard that states can surpass if they choose. The PREP

Act’s preemption provision, for instance, broadly states that “no State . . . may establish, enforce, or

continue in effect with respect to a covered countermeasure any provision of law or legal requirement”

that relates to the PREP Act’s subject matter and “is different from, or is in conflict with,” any of the

PREP Act’s requirements. Section 3215 of the CARES Act, by contrast, saves state laws from preemption

if they afford volunteer healthcare professionals “greater protection from liability” than federal law.

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Finally, Congress can consider how to define the scope of any tort immunity, and whether to establish an

alternative compensation system for injured parties. For example, Congress can categorically bar

plaintiffs from filing COVID-19-related tort lawsuits against defendants, or it can create exceptions for

cases in which the defendant has allegedly committed gross negligence or willful misconduct. Congress

could broadly insulate a wide array of entities from liability, or it could protect only specified classes of

potential defendants, like individuals, businesses, or nonprofit organizations. Similarly, Congress could

bar plaintiffs from filing any type of tort lawsuit related to the COVID-19 pandemic, or it could only

prohibit plaintiffs from asserting certain claims, like negligence or medical malpractice. If Congress

forces injured persons to relinquish their available tort remedies against private entities, it could consider

establishing a fund to compensate those persons outside the litigation process (as it did in the PREP Act

and the ATSSSA), or interposing the United States as the defendant (as it did in the Westfall Act and the

BioShield Act). Finally, as an alternative to foreclosing plaintiffs from filing lawsuits, Congress could

instead limit the types and amounts of damages that plaintiffs can recover or alter the procedures

governing how the parties and the court conduct the lawsuit.

Author Information

Kevin M. Lewis

Legislative Attorney

Disclaimer

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