Ken Miller: As Written, SB65 Will Increase Business Liability


[Op-Ed] As Montana business owners, we are very concerned regarding SB65, which has passed the Senate and is now in the Montana House of Representatives.  We certainly believe the intention is good for limiting business owner liability regarding COVID-19 and seeks to relieve businesses from the burden of requiring masks or vaccinations, which is awesome!  However, we have an issue with one specific section as written. 

We believe this section will encourage lawsuits against businesses by legislating the following…

(1) A person who possesses or is in control of a premises, including a tenant, lessee, or occupant of a premises, who directly or  indirectly invites or permits an individual onto a premises, is not liable for civil damages for injuries sustained from the individual’s exposure to covid-19, whether the exposure occurs on the premises or during an activity managed by the person who possesses or is in control of a premises, unless (the KEY here being the word ‘unless’) THE CIVIL ACTION INVOLVES AN ACT OR OMISSION THAT CONSTITUTES GROSS NEGLIGENCE, WILLFUL AND WANTON MISCONDUCT, OR INTENTIONAL TORT.  (2) THE STANDARD ESTABLISHED IN SUBSECTION (1) APPLIES IN LANDLORD-TENANT CLAIMS MADE UNDER 70- 8 24-303(1)(B) THROUGH (1)(E) FOR INJURIES SUSTAINED FROM AN INDIVIDUAL’S EXPOSURE TO COVID-19.

This section is not protection from lawsuits, as businesses will still be wide open for frivolous lawsuits just because they are open for business during the next 10 years per this bill. Guilty or not, once a lawsuit is filed against you, you must defend yourself in court.  This could potentially put lots of small businesses out of business from legal costs alone.  Anyone can bring a suit and claim it “CONSTITUTES GROSS NEGLIGENCE, WILLFUL AND WANTON MISCONDUCT, OR INTENTIONAL TORT.” The onerous is on the business owner to disprove in court, and legal fees for frivolous actions are very costly.

The burden of protecting and policing the public’s health should not lay on business owners’ shoulders.  The public should take care of themselves as they always have in a free society.  Businesses should not be put in the position of police or health protectors.  Health officials already require businesses to do the enforcing for them with the threat of fines and license forfeiture if they do not.  Thankfully this bill does seek to limit that; however, it just doesn’t go far enough to protect businesses from financial ruin due to COVID-19 liability.   

This bill relieves businesses of liability regarding those that don’t want their temperature taken or to wear a mask. However, businesses are still potentially put in the position of stationing an additional employee at their doors to request people wear a mask and ask to take their temperature. 

This bill is entirely too vague and leaves businesses wide open for very costly lawsuits. Businesses should be completely indemnified and protected from lawsuits and heavy-handed governmental repercussions with regard to communicable diseases that are beyond their control and sphere of expertise.  Business owners and employees should not be forced into the position of government mandate enforcers or de facto health care providers.  It’s already hard enough for some businesses to remain open during this pandemic and financial climate. 

Please contact Governor Gianforte’s office at 406-444-3111.  Because he is pushing on all legislators to pass this bill, and respectfully ask to include a real liability shield across the board. Ask him to instead support amendments to this bill that protect the defined “people” group from all lawsuits and governmental repercussions with regard to communicable diseases. 

Also, ask to remove Sections 4 – Liability of health care providers and Section 5 – Supplies, equipment, and products designed, manufactured, labeled, sold, distributed, and donated in response to covid-19.

[Editor’s Note: This op-ed was submitted to the editor by Ken and Peggy Miller. Ken Miller served as Republican state senator, the chair of the Montana Republican Party, and was the 2012 candidate for Governor on the Republican ticket. Currently, he and his wife are small business owners who manufacture EarthBuster®]


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