During the COVID-19 pandemic, Illinois Governor Pritzker issued an Executive Order, pursuant to the Illinois Emergency Management Agency Act ("Act'), which was reissued over many months, which extended tort immunity protections to health care facilities "engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak, unless it is established that the injury or death was caused by...willful misconduct".
The extent of the immunity protections was addressed in a lawsuit filed by a number of executors of deceased residents of Geneva Nursing and Rehabilitation Center who argued that the Center had its "failure to quarantine symptomatic staff members and residents adequately and its failure to implement effective procedures for maintaining hygiene and equipment, including personal protective equipment" caused the deaths of the named residents.
The Center filed a motion to dismiss arguing that because it was in fact "rendering assistance" to the residents consistent with the Act that it was immune from all negligent claim including claims of willful misconduct. Essentially, the Center was arguing that Pritzker's Executive Order provided "blanket" or "absolute immunity". Ultimately, the trial court certified the question as to the scope of the immunity protections to the Illinois Appellate Court.
Upon review, the Court clarified that the correct question was the scope of protections under the Act and not the Executive Order which was issued pursuant to authority granted to the Governor pursuant to the Act. Thus, the Court stated that the certified question was whether taken together, the Order and the Act "grant immunity for ordinary negligence claims that rendered assistance to the State during the COVID-19 Pandemic?".
Based on the clear language of the Act, the Court answered the question in the affirmative and thereby rejected the Center's argument that it was entitled to blanket or absolute immunity from willful misconduct. Moreover, because the question of whether the Center did or did not "render assistance" was a specific fact question that had not yet been addressed during the preliminary stages of the litigation the case was remanded back to the trial court. (James v. Geneva Nursing and Rehabilitation Center, 2023 IL. App(2d) 220180 (August 17,2023)).
"We do not find any ambiguity in section 21(c) of the act. The statutory authority is clear that, except for willful misconduct, any 'private person, firm or corporation' who renders 'assistance or advice at the request of the state during [a] disaster shall not be civilly liable for causing the death of, or injury to, any person,'" the court said. "Thus, Bria would have immunity from negligence claims arising during the governor's disaster declaration if and only if it can show it was 'render[ing] assistance' to the state during this time. This interpretation is consistent with guidance from our Supreme Court, which has repeatedly observed that, '[w]here the legislature has chosen to limit an immunity to cover only negligence, it has unambiguously done so.'"
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