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FMG Law Blog Line

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].

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