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Posts Tagged ‘Georgia General Assembly’

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].

Immunity for COVID-19 Claims in Georgia

Posted on: June 16th, 2020

By: Jake Daly

Following a three-month layoff due to COVID-19, the Georgia General Assembly reconvened on June 15 to complete its business for the 2020 session. With only ten legislative days remaining as of June 15, 2020, there is limited time to deal with new and old priorities. One of the new priorities is a bill providing immunity for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who contract COVID-19.

HB 216 was introduced in the House in 2019 to create a specialty license plate honoring the Georgia Tennis Foundation. The House passed it on March 10, 2020, and it was referred to the Senate Committee on Public Safety where it was amended to become the Georgia Pandemic Business Immunity Act. This committee passed the amended version of HB 216 on June 15, 2020. The bill still needs approval by the full Senate and the House before it can be signed into law by Governor Brian Kemp.

HB 216 is designed to (1) ensure that society’s constitutional freedoms are adequately protected while allowing citizens and businesses to return to some sense of normality without fear of civil liability that may arise from risks that nobody can fully control, (2) allow the citizens of Georgia to focus on rebuilding the state’s damaged economy without being burdened by the costs of crippling litigation, (3) allow businesses to continue to obtain access to affordable insurance coverage for their operations, and (4) allow the state and local governments to raise the revenue needed to provide critical services to their citizens.

If enacted, HB 216 would create a new code section, O.C.G.A. § 51-1-56, which would apply only to claims that arise after its effective date and on or before June 30, 2022. (The end date is two years after Governor Kemp’s last executive order declaring a state of emergency due to COVID-19 expires. Governor Kemp’s current executive order expires on June 30, 2020.) The key provisions of HB 216 are:

  • All persons would be immune from any civil liability for damages arising from exposure to or contraction of COVID-19 by another while on their premises. Note that the term “person” is defined broadly to include natural people, businesses, property owners’ associations, charitable organizations, and state and local governments and their departments and officials. Also, the term “premises” is defined broadly to include residential, commercial, agricultural, and industrial property that is owned, occupied, leased, operated, maintained, or managed by a “person.”
  • All healthcare providers and facilities would be immune from any civil liability for injury or death allegedly caused by the provider’s or the facility’s good-faith acts or omissions while providing healthcare services related to COVID-19.
  • There would be no immunity for conduct that constitutes gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
  • Punitive damages could not be recovered in any case involving exposure to or contraction of COVID-19.

Stay tuned for further updates as HB 216 winds its way through the General Assembly.

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

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.**

Georgia General Assembly Passes Waiving Sovereign Immunity for Certain Claims

Posted on: April 11th, 2019

By: William J. Linkous, III

For the second time in recent years the Georgia General Assembly has passed legislation waiving sovereign immunity for certain claims against the State, and against local governments. In 2016, then-Governor Deal vetoed a bill that waived sovereign immunity in specific circumstances on the grounds the waiver was too broad. This year, the General Assembly enacted HB 311, sponsored by Rep. Andy Welch (R-McDonough). The bill must be signed by Governor Kemp within 40 days for it to become law.

HB 311 contains an initial section waiving sovereign immunity for claims seeking declaratory or injunctive relief to remedy an injury in fact caused to an aggrieved person by the state, a state governmental entity, or an officer or employee in his or her official capacity in violation of a state statute, the Georgia Constitution, or the United States Constitution. The bill provides a list of exceptions to the waiver, including claims for monetary relief, attorneys’ fees, or expenses of litigation except as provided in O.C.G.A. § 9-15-14, claims brought in federal court, and claims brought by inmates in penal institutions.

The more interesting provisions of the bill for local government attorneys and officials are the provisions that apply to counties, municipalities, and consolidated governments. The bill would add new provisions found in O.C.G.A. §§ 36-80-50 to 36-80-56 which would waive sovereign immunity as to any claim brought by an aggrieved person in the superior courts of Georgia against counties, municipalities, and consolidated governments or entities relating thereto, or against an officer or employee thereof in his or her official capacity seeking declaratory or injunctive relief in certain circumstances. Those circumstances include (1) challenges to local ordinances, rules, and policies under the U.S. or Georgia constitutions, state statutes, or rules or regulations; (2) remedies to injuries in fact, or imminent threats thereof, of an aggrieved person of a local government, officer, or employee acting without lawful authority, beyond the scope of official power, or in violation of the U.S. or Georgia constitutions, state statutes, rules or regulations, or local ordinances other than zoning ordinances; and (3) remedies to injuries when the injury is related to the award of a proposed agreement with a local government or an officer of employee thereof.  Under category (3), suit must be filed within 10 days from the date that the award is made public.

The provisions relating to local governments also provide a similar list of exceptions to the waiver list for the state. The bill provides that it shall be narrowly construed and shall not alter or amend any other immunities nor any other requirements for filing suit. The bill contains provisions limiting liability for officers and employees in their individual capacities and discouraging suit against employees individually, and it will be interesting to see how those provisions interact with official immunity if the bill is signed into law. The bill also contains a provision prohibiting such suits until 30 days after notice is mailed to the local government providing notice of the claim. If the bill becomes law, this 30-day provision may be a stumbling block to litigants who wish to proceed immediately to a temporary restraining order upon an injunctive relief or declaratory judgment claim. Moreover, such suits cannot be filed later than 90 days after providing the notice. The bill also provides for waiver of sovereign immunity for claims of breach of contract by local governments.

The bill also provides for waiver in quiet title actions and also provides for immediate appeals for judgments, orders, or rulings denying or refusing to grant immunity to one or more parties based upon sovereign, official, qualified, or any other immunity.  However, only one immediate appeal is allowed.

It will be interesting to see whether the bill is signed into law, and if so the implications it will have on local government litigation.

If you have any questions or would like more information, please contact William Linkous at [email protected].

A Look Ahead to 2018 Legislative Session

Posted on: December 20th, 2017

By: Allan J. Hayes

The Georgia General Assembly will convene on January 8, 2018 and adjourn after 40 legislative days (usually the end of March). With 2018 being an election year, there is likely to be as much politicking, positioning and posturing as there is legislating during the second half of the 2017-2018 cycle. All statewide elected officials and all seats in the state House and State Senate are up for election in 2018. This generally means that no sweeping new policies will be passed this year.

Governor Deal (R) is term-limited, so the race for the office is open. Lt. Governor Cagle (R) is running for governor, so that office will be open as well. Many current and former legislators are campaigning to replace the Governor and the Lt. Governor, so both chambers are expected to adjourn early so everyone can campaign for their respective office.

But, as Speaker Ralston recently told a group of us, “regardless of elections, the people’s work must get done. And we will stay until it is finished.” This governor and legislature have worked well together in the past, and will likely work together on legislation that include the following (not in order of importance).

Every session, the most scrutinized piece of legislation is the state budget. According to the Georgia Constitution, it is the only issue the General Assembly must address each year. An increase in state revenue means lawmakers will have additional money to use in the 2018 fiscal year. At least some of that new money will go into education, which represents about half of the state budget. The health program for state employees and Medicaid are also likely to receive additional funds. And Lieutenant Governor Cagle wants the state to invest $100 million into venture capital for tech companies, a program he calls “Invest Georgia.” The state will also do what is necessary to continue funding of the Savannah Harbor Deepening Project.

The legislature will also consider spending for new rural development ideas like relocation tax incentives, rural broadband and healthcare funds to fight the opioid epidemic. Other healthcare related priorities include addressing rising health insurance premiums, including exploring association health plans and promoting the selling of insurance across state lines. Out-of-Network “Surprise Billing” or Balance Billing prohibitions is another major issue that will be tackled this session. The department of insurance may pursue ACA 1332 State Innovation Waivers to cover more Georgians and health insurance issues like air ambulance payments, cost-sharing Limits for prescription drugs, health insurance network adequacy standards, and medical marijuana will also be discussed.

The very contentious Religious Freedom Restoration Act has come up in each of the last two sessions of the legislature. Even with legislative leaders declaring it a “non-starter,” it will likely receive attention in the halls, if not on the floor. Last year a bill to modernize Georgia’s adoption laws which included the religious liberty provision was stalled. Legislative leaders have vowed to pass a “clean” adoption bill this year and the Governor has said he will sign it.  Additionally, there will be a bill introduced that would restrict local governments ability to ban short term residential rentals like Airbnb.

Another holdover from the 2017 session is Marsy’s Law, a proposed Constitutional Amendment securing permanent, enforceable rights for victims of crime. It passed the Senate and will be addressed in the House in 2018. Georgia’s certificate of need law for healthcare provider facilities is also a likely topic for debate. The Cancer Treatment Center of America is limited to 50 beds and a cap on in-state patients of 35 percent at their Georgia hospital and they support legislation to raise the 35 percent cap.

Finally, lawmakers are expected to debate two separate proposals that would boost pay for police and legislators. The Georgia Sheriffs’ Association is backing a one-cent sales tax to help fund a new mandatory minimum salary for deputy sheriffs and jailers, and legislators would see a 72 percent increase to their salaries under a proposal by a committee created earlier this year to review compensation for elected officials.

If you have any questions or would like more information, please contact Allan J. Hayes at [email protected].