How Protected Is Your Business From COVID-19 Liability?
This post was written at 9:00 a.m. on August 27, 2020. We believe that it was accurate and up to date as of that time. However, because of the rapid, daily changes in the political, business, and legal climates, we cannot guarantee the post’s currentness.
Governor Brian Kemp signed a new bill into law that protects Georgian businesses, facilities, and governmental bodies from coronavirus-related liability. The Georgia COVID-19 Pandemic Safety Act follows after numerous states across the nation have taken steps to shield businesses lawsuits related to COVID-19. The Act amends the Georgia tort claims law to provide exceptions, definitions, and a presumption against liability for entities, including healthcare facilities.
The Act outlines additional steps of protection such as a written warning that is posted to establish to guests that they are under the presumption that they are at risk of exposure or contraction of COVID-19 by entering. The warning must be posted at the entry of premises or on tickets and wristbands. The warning has requirements of font and text size to ensure visibility and is as follows:
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.’
However, the rebuttable presumption, whether the sign is posted outside an entity or not, does not apply to cases of gross negligence, willful or wanton misconduct or reckless or intentional infliction of harm. Guests are still allowed to file a claim against an entity but must prove these four standards of misconduct. The purpose of the sign seems unclear as the Act ups the standard of negligence to the other exceptions with or without the posted sign.
The Act also does not provide detail to what rises to the level of gross negligence, leaving a gray area in what could harm businesses who are trying to instill proper protocols for their services. Georgia Code § 51-1-4 defines gross negligence in general as a person’s conduct was so reckless it amounted to a conscious disregard for another person’s safety.
Typically, four factors must be proven in gross negligence cases: duty of care, breach of duty, causation, and damages. These factors can leave a window of opportunity in the way many businesses must operate to provide their services. The responsibility of employees’ actions, level of contact for services, and protocols that will allow for sustaining the survival of your business can all possibly leave you with liability of damages to a guest.
Additionally, the Act does not waive other protections an entity may have, such as sovereign immunity if it is a governmental entity.
Our specialized business and corporate litigation attorneys at Smith, Welch, Webb & White can provide counsel to help you navigate a strategic plan for implementing protocols and damage prevention for your business. Call us today to allow us to help you in these unclear and uncertain times.