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Update: Immunity for COVID-19 Claims in Georgia

7/2/20

By: Jake Daly

After being interrupted by three months because of COVID-19, the Georgia General Assembly finally completed its 2020 session on June 26.  The final ten days saw a flurry of activity as legislators raced to pass a budget, a hate-crimes bill, and many other bills.  One of the legislators’ new priorities was to provide immunity from civil damages for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who are infected with COVID-19.

Ultimately, the legislature considered three bills on this issue.  All were committee substitutes because Crossover Day (the last day for a bill to pass the chamber in which it was introduced and “cross over” to the other chamber for its consideration) had passed before the session was suspended on March 13, which meant that new bills could not be introduced.  My previous post discussed HB 216, the first bill that was amended to provide COVID-19 immunity, but it never received a vote by the full Senate after being amended by substitute in the Senate Committee on Public Safety.  Next up was HB 167, which originated as a bill dealing with licensing of certain employees of property and casualty insurers.  It passed the House in 2019 and was referred to the Senate Committee on Insurance and Labor, which amended it by substitute to address COVID-19 immunity.  HB 167 passed the full Senate but did not receive a vote in the House.

What emerged from the chaos was SB 359.  Originally, this bill would have created the Surprise Billing Consumer Protection Act, and the full Senate passed an amended version of it unanimously before the March 13 suspension.  After the legislature reconvened in June, SB 359 was referred to the House Special Committee on Access to the Civil Justice System, which amended the bill by substitute to address COVID-19 immunity.  On the last day of the session, the full House passed the substituted version of SB 359 and sent it to the Senate.  At about 10:15 p.m. that night, the full Senate passed SB 359 in one of its last official acts before adjourning.

Assuming that Governor Kemp signs it, SB 359 will create the Georgia COVID-19 Pandemic Business Safety Act, which will be codified at O.C.G.A. §§ 51-16-1 to -5.  Under this Act, healthcare facilities and providers, entities,[1] and individuals are immune from a “COVID-19 liability claim” unless their actions showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  O.C.G.A. § 51-16-2(a).  A “COVID-19 liability claim” is a claim for:

  1. transmission of, infection by, exposure to, or potential exposure to COVID-19 (a) at a healthcare facility or on the premises of any entity, individual, or healthcare provider that results in injury or death, or (b) caused by the actions of a healthcare provider or an individual;
  2. injuries or death caused by acts or omissions by a healthcare facility or a healthcare provider in arranging for or providing healthcare services for COVID-19 or where the response to COVID-19 reasonably interfered with the arrangements for or the provision of healthcare services to the claimant; or
  3. manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing the personal protective equipment or sanitizer to the claimant by any entity during a public health state of emergency for COVID-19 if the manner in which the personal protective equipment or sanitizer is manufactured, labeled, donated, or distributed departs from the normal manner of manufacturing, labeling, donating, or distributing the personal protective equipment or sanitizer and such departure causes injury or death.

O.C.G.A. § 51-16-1(3).

For COVID-19 liability claims against an entity or an individual for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is on the entity’s or the individual’s premises,[2] there is a rebuttable presumption of assumption of the risk by the claimant when:

  1. a receipt or proof of purchase for entry issued by the entity or the individual for entry or attendance includes the following warning in at least ten-point Arial font placed apart from other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

or

  1. there is a sign posted at the point of entry that states the following in at least one-inch Arial font placed apart from other text:

Warning

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.

O.C.G.A. § 51-16-3(a).  This rebuttable presumption does not apply if the actions of the entity or the individual showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  Id.  An entity or an individual is entitled to the immunity under O.C.G.A. § 51-16-2(a) even if these warnings are not used.  O.C.G.A. § 51-16-3(b).

For COVID-19 liability claims against a healthcare facility or a healthcare provider for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is injured or dies at a healthcare facility or on the premises of a healthcare provider, there is a rebuttable presumption of assumption of the risk by the claimant when there is a sign posted at the point of entry that states the following in at least one-inch Arial font placed apart from other text:

Warning

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.

O.C.G.A. § 51-16-4(a).  This rebuttable presumption does not apply if the actions of the healthcare facility or the healthcare provider showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  Id.  An entity or an individual is entitled to the immunity under O.C.G.A. § 51-16-2(a) even if this warning is not used.  O.C.G.A. § 51-16-4(b).

The Act includes a sunset provision.  It applies only to COVID-19 liability claims that accrue on and before July 14, 2021.  It does not indicate whether it applies to COVID-19 liability claims that accrue prior to the effective date, so that could be a source of future litigation.

Two points should be made in conclusion.  First, the Act does not impair the rights of employees under the worker’s compensation act.  O.C.G.A. § 51-16-5(3).  Second, although the Act defines “entity” as including political subdivisions, counties, municipalities, and other governmental offices and bodies, it should not be construed as waiving sovereign or official immunity.  O.C.G.A. § 51-16-2(b) (“The immunity set forth in subsection (a) of this Code section shall be provided in addition to, and shall in no way limit, any other immunity protections that may apply in state or federal law.”).

[1] The Act defines “entity” to include “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.”  O.C.G.A. § 51-16-1(4).

[2] The Act defines “premises” to exclude healthcare facilities.  It means “any property owned, occupied, leased, operated, maintained, or managed by an individual or entity, whether residential, agricultural, commercial, industrial, or other real property located within the State of Georgia,” other than a healthcare facility.”  O.C.G.A. § 51-16-1(9).

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