July 7, 2020
In the waning hours of the General Assembly’s legislative session on June 26, 2020, the Georgia State Senate agreed to the Georgia House of Representative’s proposal to provide substantial liability limitation to businesses against tort claims arising from the COVID-19 pandemic. Senate Bill 359, known as the “Georgia COVID-19 Pandemic Business Safety Act”, now waits on the signature of Governor Brian Kemp or August 7, 2020 (whichever comes first) to take effect and stands to provide express guidance on how businesses and other entities can provide access and services to the public in pandemic times with reduced risk of devastating damages claims if a patient or customer gets sick or dies. It is not currently expected that the bill will be vetoed, but our team will publish to you any action that causes the legislation not to take effect.
The bill started with a hospital and other health care provider request for immunity from COVID-19 related liability claims. It first got broadened to include sports venues seeking to reopen and then emerged with protection for a wide range of businesses and properties.
SB 359’s liability protection is provided in two ways—first, through a broad limitation of liability for any “COVD-19 liability claim” that is not the result of gross negligence or neglect; and second, through what is known as a “rebuttable presumption” that a customer or patient assumes the risk of infection through participation in services or events, if entities make specific efforts to warn customers and entrants.
The limitation of liability in the Act is facially expansive, covering any healthcare provider or facility and any other “entity” for any “COVID-19 liability claim” unless there is a showing by a claimant in a suit of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm by the provider or entity. The expansiveness of this limitation comes from the two liberally defined terms—entity and COVID-19 liability claim.
SB 359 defines entity as:
any association, institution, corporation, company, trust, limited liability company, partnership, religious or educational organization, political subdivision, county, municipality, other governmental office or governmental body, department, division, bureau, volunteer organization; including trustees, partners, limited partners, managers, officers, directors, employees, contractors, independent contractors, vendors, officials, and agents thereof, as well as any other organization other than a healthcare facility.
COVID-19 liability claim is defined equally as broadly, covering causes of action arising from transmission, infection, exposure, or potential exposure of COVID-19 on a premises or by a person. Application to an entity’s or person’s premises in the final bill widened earlier versions of the bill to cover more than just sports venues, but also locations such as entertainment or restaurant venues. It also covers causes of action arising from acts or omissions in the healthcare setting where the response to COVID-19 reasonably interfered with the provision of healthcare services and those actions arising from the manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer during the public health state of emergency.
In addition to the broad limitation of liability aimed at limiting successful claims to those where an actor was at least grossly negligent, SB 359 also includes a rebuttable presumption by defendants to assert assumption of risk on the part of customers and entrants to further reduce claims and provide businesses and entities express guidance for how to provide access and services with some level of comfort.
To take advantage of this presumption, entities that are not healthcare facilities nor providers may either post signage or include on a receipt or proof of purchase specific language provided in statute to inform the entrant or bearer that they assume the risk of contracting COVID-19 while on the premises. Similarly, healthcare facilities and providers must post signage at points of entry that includes similar language. The Act provides granular detail on how these presumptions are achieved, down to the font style and size of the warnings.
As with any legislation, particularly around tort liability, there are limits and exceptions to its scope. SB 359’s liability limitation will only be available for causes of action that accrue through July 14, 2021, unless renewed by the legislature. Additionally, the Act does not interfere with or supersede compliance with any requirements or provisions on a person or business in the state’s criminal code, health regulations, worker’ compensation program, emergency management statutes, or executive orders in force during the public health emergency.
While the Georgia COVID-19 Pandemic Business Safety Act appears to provide welcome guidance and protection to entities that want to get back to business, its contours and application to your operations will vary based on existing case law and interpretation by courts in the days ahead. Our Nelson Mullins team stands ready to advise on how you can limit your liability as you get back to work and help address any potential claims that may arise.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.