As Reported by the Senate Judiciary--Civil Justice Committee

127th General Assembly Regular Session 2007-2008

Am. H. B. No. 89

Representative Coley 

Cosponsors: Representatives Wachtmann, Garrison, Fessler, McGregor, J., Healy, Evans, Wagner, Seitz, Stebelton, Setzer, Latta, Combs, Adams, Hite, Webster, Blessing, Harwood, Aslanides, Bacon, Boyd, Chandler, Collier, Core, DeBose, Dolan, Domenick, Gibbs, Hagan, J., Hottinger, Huffman, Hughes, Jones, Koziura, Mallory, Mandel, McGregor, R., Otterman, Patton, Sayre, Schindel, Schneider, Strahorn, Uecker, Wagoner, White, Wolpert, Zehringer 

Senators Goodman, Buehrer, Amstutz, Kearney, Mason, Sawyer 

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A BILL

To amend section 2305.37 of the Revised Code to

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provide persons who donate consumer goods to a

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charitable agency with qualified immunity from

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civil liability for harm that allegedly arises

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because the consumer goods are not fit for use and

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to establish a qualified immunity from civil

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liability for certain charitable agencies that

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distribute perishable food or consumer goods free

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of charge to individuals in need.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That section 2305.37 of the Revised Code be	10
amended to read as follows:	11

Sec. 2305.37.  (A) As used in this section:

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(1) "Agency" means any nonhospital, charitable nonprofit	13
corporation that is organized and operated pursuant to Chapter	14
1702. of the Revised Code and that satisfies both of the	15
following, or any nonhospital, charitable association, group,	16
institution, organization, or society that is not organized and	17
not operated for profit and that satisfies both of the following:	18

(a) It distributes consumer goods or perishable food,	19
directly or indirectly, to individuals in need.	20

(b) It does not charge or accept any form of compensation	21
from the individuals in need for the distribution of the consumer	22
goods or perishable food to them.	23

(2) "Consumer goods" means items of tangible personal	24
property other than food that are used primarily for personal,	25
family, or household purposes.	26

(3) "Food service operation" has the same meaning as in	27
section 3717.01 of the Revised Code.	28

(3)(4) "Food that is gleaned" means perishable food that	29
remains on a farm or other real property and that the owner,	30
lessee, renter, or operator of the property permits one or more	31
persons to salvage free-of-charge for subsequent donation to one	32
or more agencies.	33

(4)(5) "Harm" means injury, death, or loss to person or	34
property.	35

(5)(6) "Hospital" has the same meaning as in section 2108.01,	36
3701.01, or 5122.01 of the Revised Code.	37

(6)(7) "Individuals in need" means those persons who an	38
agency determines are eligible to receive free distributions of	39
consumer goods or perishable food because of poverty, illness,	40
disability, infancy, or other conditions or circumstances that may	41
result in persons having a need to receive free distributions of	42
consumer goods or perishable food.	43

(7)(8) "Perishable food" means any food that may spoil or	44
otherwise become unfit for human consumption because of its	45
nature, age, or physical condition. "Perishable food" includes,	46
but is not limited to, fresh meats, processed meats, poultry, fish	47
and other seafood, dairy products, bakery products, eggs in the	48
shell, fresh fruits, fresh vegetables, food that is gleaned, food	49
that is packaged, refrigerated, or frozen, food that is canned,	50
and prepared or other food that has not been served by a	51
restaurant, cafeteria, hospital, hotel, caterer, or other food	52
service operation to any customer, patient, or other person in the	53
ordinary course of business, by a public or private school,	54
college, university, or other educational institution to a student	55
or another person on the premises in the ordinary course of the	56
operation of the institution, or by a fraternal, veteran's, or	57
other organization to its members or other persons on the premises	58
in the ordinary course of the operation of the organization.	59

(8)(9) "Person" has the same meaning as in section 1.59 of	60
the Revised Code and additionally includes governmental entities	61
and federal instrumentalities.	62

(9)(10) "Sale date" has the same meaning as in section	63
3715.171 of the Revised Codemeans the date by which the	64
manufacturer, processor, or packager of a packaged food product	65
recommends that the food product be sold for consumption based on	66
the food product's quality assurance period.	67

(10)(11) "Tort action" means a civil action for damages for	68
injury, death, or loss to person or property. "Tort action"	69
includes a product liability claim that is subject to sections	70
2307.71 to 2307.80 of the Revised Code but does not include a	71
civil action for a breach of contract or another agreement between	72
persons.	73

(B) Notwithstanding Chapter 3715. of the Revised Code, a	74
person who, in good faith, donates perishable food to an agency is	75
not liable in damages in a tort action for harm that allegedly	76
arises because that perishable food, when distributed by the	77
agency or any other agency to a particular individual in need, is	78
not fit for human consumption, if both of the following apply:	79

(1) Prior to the donation of the perishable food to the	80
agency, the person determines that the perishable food will be fit	81
for human consumption at the time of its donation. A presumption	82
favoring liability does not arise because the perishable food is	83
donated to an agency on or after an applicable sale date.	84

(2) The person does not make the determination that the	85
perishable food will be fit for human consumption at the time of	86
its donation to the agency in a manner that constitutes gross	87
negligence or willful or wanton misconduct.	88

(C) A person who, in good faith, donates consumer goods to an	89
agency is not liable in damages in a tort action for harm that	90
allegedly arises because those consumer goods are not fit for use	91
at the time the agency or any other agency distributes them to a	92
particular individual in need, if both of the following apply:	93

(1) Prior to the donation of the consumer goods to the	94
agency, the person determines that the consumer goods will be fit	95
for use at the time of their donation. A presumption favoring	96
liability does not arise because the consumer goods are in	97
packaging that has been damaged.	98

(2) The person does not make the determination that the	99
consumer goods will be fit for use at the time of their donation	100
to the agency in a manner that constitutes gross negligence or	101
willful or wanton misconduct.	102

(D) Notwithstanding Chapter 3715. of the Revised Code, an	103
agency that, in good faith, distributes consumer goods or	104
perishable food to a particular individual in need is not liable	105
in damages in a tort action for harm that allegedly arises because	106
those consumer goods are not fit for use or that perishable food	107
is not fit for human consumption if both of the following apply:	108

(1) Prior to the distribution of the consumer goods or	109
perishable food to the individual, the agency determines that the	110
consumer goods will be fit for use or the perishable food will be	111
fit for human consumption at the time of its distribution. A	112
presumption favoring liability does not arise because the consumer	113
goods are in packaging that has been damaged or because the	114
perishable food is distributed to an individual on or after an	115
applicable sale date.	116

(2) The agency does not make the determination that the	117
consumer goods will be fit for use or the perishable food will be	118
fit for human consumption at the time of its distribution to the	119
individual in a manner that constitutes gross negligence or	120
willful or wanton misconduct.	121

(E)(1) This section does not create a new cause of action or	122
substantive legal right against persons who donate consumer goods	123
or perishable food to an agency or against agencies that	124
distribute consumer goods or perishable food to an individual in	125
need.	126

(2) This section does not affect any immunities from or	127
defenses to tort liability established by another section of the	128
Revised Code or available at common law to which persons who	129
donate consumer goods or perishable food other than to agencies,	130
or to which agencies that distribute consumer goods or perishable	131
food other than to individuals in need, may be entitled.	132

Section 2. That existing section 2305.37 of the Revised Code	133
is hereby repealed.	134