Good Samaritan Act
The Bill Emerson Good Samaritan Food Donation Protection Act was enacted to “encourage the donation of food and grocery products to nonprofit organizations for distribution to needy individuals.” The Act precludes civil and criminal liability arising from food donated in good faith, except in cases of gross negligence or intentional misconduct. The Act provides:
LIABILITY OF PERSON OR GLEANER
A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals.
LIABILITY OF NONPROFIT ORGANIZATION
A nonprofit organization shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals.
Paragraphs (1) and (2) shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the person, gleaner, or nonprofit organization, as applicable, constituting gross negligence or intentional misconduct.
The term ‘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. The Act defines a “gleaner” as “a person who harvests for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy, an agricultural crop that has been donated by the owner.”
The Act is intended to establish a minimum level of immunity for those engaged in food donation and distribution. State “good samaritan” statutes concerning the donation of food to the needy that provide less liability protection than the Act are considered preempted. However, state “good samaritan” statutes can provide greater liability protection if they so choose.
For example, New Jersey’s “Food Bank Good Samaritan Act” contains the same protections that a donor or food bank enjoys under the Act, however, the New Jersey Act provides greater protections to an “owner of agricultural food.” There, such owners can not be liable for “damages in any civil action or subject to criminal prosecution resulting from the consumption of the food gleaned or donated.” The Act only provides such liability protection so long as the damages are not caused by gross negligence or intentional misconduct.