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Archive for the ‘Coronavirus – Government’ Category

Georgia Enacts Immunity for COVID-19 Claims

Posted on: August 17th, 2020

By: Jake Daly

As described in my previous post, the Georgia General Assembly passed a bill in the waning minutes of the 2020 session to provide immunity from civil damages for healthcare facilities and providers, other businesses, and individuals that are sued by employees, customers, visitors, and patients who are infected with COVID-19. The new law, known as the Georgia COVID-19 Pandemic Business Safety Act, became effective on August 5, 2020, when Governor Brian Kemp signed the bill. The Act is codified at O.C.G.A. §§ 51-16-1 to -5.

My previous post contains a detailed summary of the Act’s provisions.  Most importantly, the Act confers immunity on healthcare facilities and providers, other businesses, and individuals from “COVID-19 liability claims” unless their actions showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. The Act also creates a rebuttable presumption of assumption of the risk by the claimant under certain circumstances.

For claims against a business or an individual for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is on the business’s or the individual’s premises, other than the premises of a healthcare facility, the claimant is presumed to have assumed the risk if the business or the individual issued a receipt or proof of purchase for entry that 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.

Alternatively, the claimant is presumed to have assumed the risk if there is a sign posted at the point of entry of the premises 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.

For 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, the claimant is presumed to have assumed the risk if there is a sign posted at the point of entry of the facility or the premises 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.

These rebuttable presumptions do not apply if the actions of the business, the individual, or the healthcare facility/provider showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

Before discussing how the Act affects healthcare facilities and providers, other businesses, and individuals, it bears noting that it seems difficult to reconcile the provision that creates immunity with the provisions that create a rebuttable presumption of assumption of the risk. Both the immunity and the rebuttable presumption are defeated by a showing of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, and so both or neither will be available to a defendant. If the immunity is available, a rebuttable presumption is meaningless. Thus, the provisions that create a rebuttable presumption of assumption of the risk seem to be superfluous.

Importantly, the Act does not require the use of the warnings quoted above.  They are required only if a business, an individual, or a healthcare facility/provider wishes to avail itself of the rebuttable presumption of assumption of the risk. From a purely legal perspective, these warnings should be used because of the protection they provide from potential civil damages. However, healthcare facilities and providers, other businesses, and individuals should consider more than just legal consequences when deciding whether, and to what extent, to resume their operations. Seeing one of these warnings might be disconcerting to some people, and so using them could have a negative effect. How people react to these warnings will probably depend somewhat on the nature of the business. For example, it seems that people entering a healthcare facility would be less likely to react negatively to a warning about contracting COVID-19 than a person entering a restaurant. The point is that protection from legal liability does nothing for a business that has no customers. Thus, every business must strike its own balance between economic, health, and liability considerations.

In weighing these considerations, healthcare facilities and providers, other businesses, and individuals should be aware that evidence of their decision not to use these warnings is not admissible in a lawsuit. Further, they are entitled to immunity under the Act even if they do not use these warnings. Thus, for some, the potential negative effects of using these warnings may be worse than foregoing the rebuttable presumption of assumption of the risk.

As shown by the exception for gross negligence, etc., the Act does not provide absolute immunity from all liability relating to COVID-19. Depending on how lenient judges are in finding factual disputes as to gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, the immunity or the rebuttable presumption of assumption of the risk may not provide sufficient protection for healthcare facilities and providers, other businesses, and individuals. The Act should not be viewed as a limitation on what healthcare facilities and providers, other businesses, and individuals can do to protect themselves from liability for money damages. Regardless of whether they use the warnings prescribed in the Act, they should follow all guidelines recommended by the CDC and their state and local governments. They should also consider guidelines issued by regulatory agencies and trade organizations since those entities are more likely to have guidelines that are specifically tailored for their type of business.  Complying with industry-specific guidelines should reduce liability exposure. Equally important is documenting compliance with guidelines.

Another option is to require persons entering the premises to sign a waiver of liability. This may not be possible for certain types of businesses, but even for those for which it is possible, it may not be advisable from a customer relations perspective. For certain businesses, the very act of asking a customer to sign a waiver of liability form may be counter-productive. Again, each business will have to weigh the pros and cons based on its unique characteristics.

Finally, the Act does not limit any other immunity that may be available under state or federal law, and it does not modify or supersede other specified laws, including those in Title 16 (crimes), Title 31 (health) and related regulations, Chapter 9 of Title 34 (worker’s compensation), and Chapter 3 of Title 38 (emergency management). Also, a claimant asserting a COVID-19 liability claim still must prove causation. Because COVID-19 has an incubation period of up to 14 days, and because it can be transmitted from person to person asymptomatically, it will be very difficult for a claimant to prove where or from whom he or she was infected.  Also, even if a claimant can identify a specific person who allegedly infected him or her, it will be difficult to prove that the person’s violation of a particular guideline (e.g., wearing a mask) caused the infection. After all, a person can be infected in the total absence of negligence by another person. Thus, even if the immunity or the rebuttable presumption of assumption of the risk is not available, proving causation will be a high hurdle for claimants to overcome.

As with all things COVID-19, there is much uncertainty surrounding the viability of claims brought by people who are infected with COVID-19 on someone else’s property. Healthcare facilities and providers, other businesses, and individuals should take certain precautions to protect themselves from litigation, but the nature and extent of those precautions requires a careful balancing of various competing interests.

If you have questions or would like more information, please contact Jake Daly at [email protected].

Statute of Limitations Tolled in California Amid Pandemic

Posted on: August 3rd, 2020

By: Matthew Jones

In response to the COVID-19 pandemic, California’s Governor Gavin Newsom issued a “state of emergency” for the entire State. In response, the California Judicial Council adopted several Emergency Rules to implement during the pandemic. In particular, Rule 9 states that all statute of limitations for civil causes of action are tolled from April 6, 2020 until 90 days after the state of emergency related to COVID-19 is lifted by the Governor. Therefore, if a party’s claim would have expired pursuant to the applicable statute of limitations during this timeframe, such claims are still very much alive. In regard to those claims, there is currently no deadline to file them since the “state of emergency” has yet to be lifted by the Governor. Once lifted, claimants will have six months to file their respective claims.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

COVID-19 in Jails: A Case Study

Posted on: May 22nd, 2020

By: Wes Jackson

By now we are all familiar with the CDC’s recommendations for limiting the spread of COVID-19: “social distancing,” maintaining a distance of six feet from others as much as possible, avoiding large gatherings, and self-isolation if you exhibit symptoms of the disease or test positive, among others. As challenging as these practices can be for the general public, they pose a unique challenge to jail administrators who are now tasked with limiting the spread of COVID-19 amongst inmates tightly packed into closed places. All the while, jail officials must also maintain order and security in the jail while respecting the constitutional rights of inmates.

How should jails balance these competing interests and, perhaps more importantly, who gets to decide? There are no clear answers to those questions. Interestingly, though, the Eleventh Circuit Court of Appeals recently issued an opinion in Swain v. Junior that provides a helpful analysis.

In Swain, inmates at Miami’s Metro West Detention Center filed for a preliminary injunction and habeas relief against the jail administrator, arguing that the jail was not doing enough to stop the spread of COVID-19 between inmates. While it was uncontested that the jail had already undertaken many measures recommended by the CDC  to address COVID-19 in jail settings (you can read that guidance here), the inmates nevertheless asked the federal district court to issue an injunction requiring the jail to take various precautions. The district court agreed and ordered the jail to implement several specific practices to stop the spread of COVID-19 in the jail, including maintenance of six feet social distancing “to the maximum extent possible;” strict testing and PPE requirements, and new procedures for the provision of medical care, among others.

The jail then went to the Eleventh Circuit Court of Appeals to ask for a stay of the injunction. The Eleventh Circuit, applying the “deliberate indifference to a risk of serious harm” standard, found that the measures the jail had taken were constitutionally adequate and did not require an immediate injunction. Specifically, the Court of Appeals found that “the evidence supports that the defendants are taking the risk of COVID-19 seriously.” The Court also noted that local governments are in the best position to allocate resources in high-demand needed to prevent, test for, and treat COVID-19 amongst various local facilities, and the district court could not assume the role of “super warden” in ordering a particular allocation of those limited resources.

In short, the COVID-19 pandemic poses a novel challenge to jail administrators. At least for now, the Eleventh Circuit has granted one jail some latitude in how it addresses that challenge. The Eleventh Circuit’s decision is consistent with federal courts’ reluctance to micromanage correctional facilities in the absence of widespread constitutional violations.   

If you have any questions about local governments’ response to COVID-19, please contact Wes Jackson at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis.  Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

An Era of Un-Road-Tested Drivers: What Parents and Their Insurers Need to Consider In Light of Georgia’s Changes to the Licensing Process During COVID-19

Posted on: May 5th, 2020

By: Wayne Melnick and Janeen Smith

Georgia’s on-the-road driving test joins the ever-growing list of changes to life as we know it as a result of COVID-19.   A new generation of drivers will be hitting the roads in Georgia soon, and they will not have taken any practical on-the-road test to get their licenses.  On April 23, 2020, Governor Brian Kemp waived the requirement for on-the-road tests until the Public Health State of Emergency is terminated citing social distancing requirements as the rationale for the waiver.  According to news sources, the road-test waiver will also alleviate a backlog of up to 30,000 applicants waiting to upgrade their learner’s permits to provisional driver licenses.     

Driving applicants are not getting a free pass as they will still be required to to satisfy all other statutory requirements for obtaining a license, i.e., a passing grade on the written test on driving safety and law, a certificate of completion of a 30-hour driver’s education course (for 16-year-olds); and, 40 hours of supervised driving time (for 17-year-olds).  Applicants can take advantage of Georgia’s waiver of the on-the-road test until June 12, 2020 when the twice-renewed state of emergency expires.

Georgia’s waiver of the on-the-road driving test has received widespread media attention.  It has been heavily criticized to the extent the waiver relies on parents executing Driving Experience Affidavits certifying their children have enough experience to obtain a license.  To some extent, Georgia’s licensing process has always involved a degree of trust.  Whether Georgia’s group of drivers who skipped the on-the-road test are any less safe than their tested counterparts remains to be seen.  After all, sources show roughly 80% of applicants pass the over-the-road test during their first attempt. 

That being said, cutting out an independent third-party’s assessment of a young driver’s readiness for the road could nevertheless have serious liability implications for parents and their insurers.  Arguably, the waiver of an on-the-road test heightens the importance of a parent’s execution of the Driving Experience Affidavit as it is currently the only assessment of a young driver’s actual abilities.  It does not take much imagination to conceive of the liability ramifications for parents. 

Consider negligent entrustment, a liability theory predicated on a vehicle owner’s “actual knowledge” that the individual entrusted with the vehicle is either incompetent or habitually reckless.  A claim of negligent entrustment is always a fact-intensive inquiry.  But, Georgia parents with minors licensed during this period of loosened licensing requirements will likely face heightened scrutiny for their children’s accidents.   

How can parents minimize their exposure during these unprecedented times? And how can insurers help minimize their risk by alerting their insureds with soon-to-be-licensed teens? All things considered; the answer is much the same way as they would before.  Our recommendations are:

  • Lead by example and always practice safe driving habits;
  • Instill the importance of being observant.  Studies show 50% of driver-error crashes are caused by a lack of scanning surroundings, being distracted, or failing to reduce speed in response to other drivers on the road;
  • There is no substitute for practice.  The law requires your child to have 40 hours of practice, but you ultimately make the decision as to whether your child may need more practice;
  • Does your child think he or she is ready for a driver’s license?

Ultimately, there is no way to make your young driver (or yourself) liability proof.  However, there are many ways to minimize risk.  Georgia’s ditching of its on-the-road test could simply be a waiver of a technicality; or it could provide to be a breeding ground for creative liability arguments.  Our intent is to continue monitoring developments on this front and to keep you appraised of ways to minimize risk. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Requests for Compassionate Release in the Era of COVID-19

Posted on: May 4th, 2020

By: Curt Graham

Correctional facilities across the country are facing unique challenges related to the COVID-19 pandemic. Some facilities have already reduced inmate populations in an effort to curb its effects. Additionally, courts are receiving an unprecedented number of requests for early release or modified sentences. A recent opinion from the United States District Court for the Eastern District of Kentucky examined an inmate’s request for a compassionate release due to coronavirus concerns.

In United States v. Cornett, No. 7:10-2-KKC, 2020 U.S. Dist. LEXIS 68878 (E.D. Ky. Apr. 20, 2020), an inmate filed an emergency motion for immediate release and argued his correctional institution was not taking adequate steps to protect prisoners from the virus. His motion was denied, as the Court found the inmate had not exhausted his administrative rights under the First Step Act of 2018. The First Step Act permits prisoners to file a motion for compassionate release on their own (as opposed to the Bureau of Prisons filing one on their behalf), but only if the prisoner has first “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or if 30 days have lapsed since the warden of the defendant’s facility received the defendant’s request to file a motion on his behalf, whichever is earlier.”). Finding the exhaustion requirements were jurisdictional, the Court rejected the argument that these requirements should be waived in light of the dangers posed by COVID-19.

The Cornett opinion emphasized that in these unsettling times, “the exhaustion requirement of the compassionate release statute is perhaps most important,” because the Bureau of Prisons (BOP) is better positioned than the courts to first assess issues such as a defendant’s health, the adequacy of the measures taken by a particular place of incarceration to address any health risks, the risk presented to the public by a defendant’s release, and the adequacy of a defendant’s release plan.” The Court also observed that the BOP has begun a review of all inmates who have COVID-19 risk factors to determine which inmates are suitable for home confinement.

Given the ongoing COVID-19 concerns, courts will undoubtedly be flooded with similar requests for early release. However, statutory exhaustion requirements may bar such requests before they are ever heard on their merits. 

FMG attorneys Wesley Jackson, Ashley Hobson and Curt Graham will be presenting a webinar on Wednesday, May 13, 2020 from 1:00 – 2:15 p.m. EST entitled “COVID-19 in Custody: Practical Tips and Liability Considerations.” They will be joined by Edward Sweeney of Sweeney Corrections Consulting. This webinar will offer an in-depth discussion of the CDC Guidance on Management of COVID-19 in Correctional and Detention Facilities and will address various legal considerations relating to COVID-19 in the correctional setting.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, protecting business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**