On June 26, 2020, the Georgia General Assembly passed the Georgia COVID-19 Pandemic Business Safety Act as one of the final bills to pass out of the legislature on the last day of the 2020 Legislative Session. The Act was written and considered in response to concerns of small businesses throughout Georgia concerning potential legal liability for COVID-19 claims against owners as the economy re-opens in Georgia. While this law has not yet been signed by the Governor, it is expected to be signed. The following is a summary of the highlights of the Act.
Gross Negligence Standard
No person or entity in Georgia can be held liable for a “COVID-19 Liability Claim” unless the claimant proves gross negligence, willful and wanton misconduct, or reckless or intentional infliction of harm. Under Georgia law, in order to establish a person or entity acted with gross negligence the claimant must prove that the defendant did not even exercise “slight diligence” under the circumstances. With this standard, claimants cannot recover for COVID-19 Liability Claims where mere ordinary negligence resulted in the transmission. This immunity from ordinary negligence claims for COVID-19 is in addition to any other immunity protections under other state or federal laws.
Assumption of the Risk
The Act creates a rebuttable presumption that a claimant assumed the risk of contracting COVID-19 where business owners take certain steps. For all premises owners, including healthcare providers and healthcare facilities, posting a prescribed warning sign in at least one-inch Arial font at a point of entry may trigger availability of this rebuttable presumption. The sign must be placed apart from any other text and state:
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.
Entities such as sports and entertainment venues requiring a ticket for entry have an alternative option of printing a prescribed warning on the ticket, receipt or other proof of purchase. The warning must be in ten-point Arial font placed apart from any other text and state:
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.
The utility of such warnings may be limited as the rebuttable presumption applies only for ordinary negligence claims which are barred by the main section of the Act. However, the failure to post warnings is not admissible in evidence in a COVID-19 Liability Claim. On the other hand, evidence of the warnings should be admissible to prove assumption of the risk without the benefit of the rebuttable presumption.
Sunset & Other Provisions
If the Governor elects not to sign the Act it will become law without his signature on August 7, 2020. The Act includes a sunset provision such that it will not apply to causes of action accruing after July 14, 2021. Finally, the Act explicitly notes that it shall not modify or supersede any statute in Georgia’s criminal title, worker’s compensation statutes, emergency management statutes, or any health statutes or regulations.
The following key definitions are included in the Act:
- “COVID-19” means SARS-CoV-2 as well as any mutation or viral fragments of it which were the subject of the public health state of emergency declared by the Governor.
- “COVID-19 Liability Claim” includes any claims for the “transmission, infection, exposure or potential exposure of COVID-19 to a claimant” at any healthcare facility, health provider’s premises, premises of any individual or entity, or “caused by the actions of any healthcare provider or individual” regardless of the location.
- The definition also includes broad coverage for healthcare facilities and healthcare providers where the response to COVID-19 reasonably interfered with the provision of healthcare services.
- Products liability claims against manufacturers and distributors of PPE are also included in the definition of a “COVID-19 Liability Claim.”
- “Entity” includes all forms of business entities, including non-profit organizations, as well as governmental bodies.
- “Premises” includes all real property whether “residential, agricultural, commercial, industrial, or other real property” in Georgia.
ABOUT THE AUTHORS
The authors were actively involved in the passage of the Act during the final days of the 2020 Legislative Session. While other bills circulating during those days provided for different levels of protections and defenses, none of those bills had the broad based support of key legislative leadership and business advocacy groups and would not have passed.
co-written with James Balli, Partner at Taylor English