COMMITTEE SUBSTITUTE
FOR
H. B. 2605
(By Delegates
Beach, Kelley, Cann and Amores)
(Originating in the Committee on the Judiciary)
[April 1, 1997]
A BILL to repeal section sixteen, article seven, chapter fifty-
five of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to further amend said chapter by
adding thereto a new article, designated article seven-d,
relating to liability for damages claimed for the
consumption or use of donated food items or grocery
products; legislative findings; definitions; limiting
liability for persons, gleaners and nonprofit corporations
under certain circumstances; exceptions.
Be it enacted by the Legislature of West Virginia:
That section sixteen, article seven, chapter fifty-five of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; and that said chapter be further amended
by adding thereto a new article, designated article seven-d, to
read as follows:
ARTICLE 7D. GOOD SAMARITAN FOOD DONATION ACT.
§55-7D-1. Legislative findings.
The Legislature finds that wholesale and retail food
distributors, shipping terminals and other establishments across
the state are disposing of food that could be made available to
those in need. However, many potential food donors are
discouraged from donating this food because of potential
liability. The United States Congress has recognized the need to
encourage food distributors to make otherwise disposed-of food
products available to those in need and has adopted Title 42
United States Code § 1791 entitled the "Bill Emerson Good
Samaritan Food Donation Act." This federal law encourages state
and local governments to enact good samaritan or donor liability
limitation laws to encourage private cooperative efforts to
provide food for hungry people within their respective
jurisdictions. The Legislature finds that this is a worthy goal,
and therefore it is appropriate for the state to encourage
participation in food donation programs by providing a statutory
framework to protect food donators from liability for their good
faith efforts.
§55-7D-2. Definitions.
As used in this section:
(a) "Apparently fit grocery product" means a grocery product
that meets all quality and labeling standards imposed by federal,
state and local laws and regulations even though the product may
not be readily marketable due to appearance, age, freshness,
grade, size, surplus or other conditions.
(b) "Apparently wholesome food" means food that meets all
quality and labeling standards imposed by federal, state and
local laws and regulations even though the food may not be
readily marketable due to appearance, age, freshness, grade,
size, surplus or other conditions.
(c) "Donate" means to give without requiring anything of
monetary value from the recipient, except that the term includes
donations by one nonprofit organization to another nonprofit
organization, notwithstanding that the donor organization has
charged a nominal fee to the donee organization, if the ultimate
recipient or user is not required to give anything of monetary
value.
(d) "Food" means any raw, cooked, processed or prepared
edible substance, ice, beverage or ingredient used or intended
for use, in whole or in part, for human consumption.
(e) "Gleaner" means a person who harvests a donated
agricultural crop for free distribution to the needy or for
donation to a nonprofit organization for ultimate distribution to
the needy.
(f) "Grocery product" means a nonfood grocery product,
including disposable paper or plastic products, household
cleaning supplies, laundry detergent or other household item.
(g) "Gross negligence" means voluntary and conscious
conduct, including a failure to act, by a person who, at the time
of the conduct, knew that the conduct was likely to be harmful to the health or well-being of another person.
(h) "Intentional misconduct" means conduct by a person with
knowledge, at the time of the conduct, that the conduct is
harmful to the health or well-being of another person.
(iI) "Nonprofit organization" means an incorporated or
unincorporated entity that:
(1) Is operating for religious, charitable or educational
purposes; and
(2) Does not provide net earnings to or operate in any other
manner that inures to the benefit of, any officer, employee or
shareholder of the entity.
(j) "Person" means an individual, corporation, partnership,
organization, association or governmental entity, including a
retail grocer, wholesaler, hotel, motel, manufacturer,
restaurant, caterer, farmer, nonprofit food distributor or
hospital. In the case of a corporation, partnership,
organization, association or governmental entity, the term
includes an officer, director, partner, deacon, trustee, council
member or other elected or appointed individual responsible for
the governance of the entity.
§55-7D-3. Limiting liability of persons or corporations who
donate food or grocery products; exceptions.
(a) A person or gleaner is not subject to civil or criminal
liability arising from the nature, age, packaging or condition of
apparently wholesome food or an apparently fit grocery product which the person or gleaner donates in good faith to a nonprofit
organization for ultimate distribution without profit or gain to
needy individuals: Provided, That this limitation on liability
does not apply to an injury to or the death of an ultimate user
or recipient of the food or grocery product which results from an
act or omission of the person or gleaner which constitutes gross
negligence or intentional misconduct.
(b) A nonprofit organization is not subject to civil or
criminal liability arising from the nature, age, packaging or
condition of apparently wholesome food or an apparently fit
grocery product which the nonprofit organization received as a
donation in good faith from a person or gleaner for ultimate
distribution without profit or gain to needy individuals:
Provided, That this limitation on liability does not apply to an
injury to or the death of an ultimate user or recipient of the
food or grocery product which results from an act or omission of
the nonprofit organization which constitutes gross negligence or
intentional misconduct.
§55-7D-4. Limitation of liability for landowners or occupiers
who allow collection or gleaning of donations; exceptions.
Any person who is a landowner or occupier and who allows the
collection or gleaning of donations on his or her property by
gleaners or representatives of a nonprofit organization, whether
paid or unpaid, for ultimate donation without profit or gain to needy individuals is not subject to civil or criminal liability
that arises due to the injury or death of the gleaner or
representative while engaged in collecting or gleaning on the
property: Provided, That this limitation on liability does not
apply to an injury or death that results from an act or omission
of the landowner or occupier which constitutes gross negligence
or intentional misconduct.
§55-7D-5. Construction.
Nothing in this article shall be construed to supersede
state or local health regulations, nor to restrict the state
department of health or any county or municipal health officer to
regulate, inspect or ban the use of any donated food for human
consumption.
NOTE: The purpose of this bill is to enact the Good
Samaritan Food Donation Act which would limit the liability of
those entities involved in the donation or distribution of food
or nongrocery items to the needy.
This article is new; therefore, strike-throughs and
underscoring have been omitted.