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

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 Y2K-
related 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

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