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By: Sharon Horne
The COVID-19 Pandemic Business Safety Act, codified at O.C.G.A. §§ 51-16-1 to -5, went into effect on August 5, 2020, to provide immunity to 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. A summary and analysis of the statute is available here. The Georgia legislature recently extended the COVID-19 Pandemic Business Safety Act’s sunset provision to include claims incurred on or before July 14, 2022.
Unlike other immunities that are considered to be “immunity from suit [that] is effectively lost if a case is erroneously permitted to go to trial,” (White v. Pauly, 137 S. Ct. 548, 551 (2017)), it appears in at least one recent State Court decision, the COVID-19 “immunity” is easily overcome. In Hendrix, et al. v. Arbor Management Services, LLC, State Court of Fulton County, 20EV002365, the plaintiffs brought a wrongful death lawsuit arising from a death in a senior assisted living facility from COVID-19. The defendants moved for judgment on the pleadings asserting immunity from suit based on the COVID-19 Pandemic Business Safety Act. The plaintiffs amended their pleadings to allege the defendant “failed to exercise even slight diligence in enforcing visitation restrictions, imposing workplace PPE requirements, and mandating social distancing between residents and staff,” and to allege “gross negligence” and reckless infliction of harm.” The Court denied the defendants’ motion, allowing plaintiffs to move forward with their claims.
Hendrix is just one of numerous cases that will test the immunity of the COVID-19 Pandemic Business Safety Act in the coming years, leaving much uncertainty around the claims brought by those impacted by COVID-19 infections. Businesses should remain vigilant in taking steps to reduce their exposure, including complying with local and federal guidance from government agencies like the Centers for Disease Control and Prevention (CDC).
If you have questions or would like more information, please contact Sharon Horne at [email protected].