August 17, 2020

Proactive Steps for Businesses to Reduce Potential Liability Under Georgia COVID-19 Immunity Law

Holland & Knight Alert
Matt Joe | Kyla O'Brien Baker | Grant E. Schnell

Highlights

  • Georgia has joined the list of states that have passed liability protection measures to mitigate the potential liability imposed upon businesses reopening to the public during the COVID-19 pandemic.
  • Earlier this month, Gov. Brian Kemp signed into law the COVID-19 Pandemic Business Safety Act (the Act), which contains provisions that Georgia businesses can utilize to minimize potential liability for any COVID-19 "liability claim."
  • This Holland & Knight alert highlights a number of considerations presented by the Act for owners and operators of public-facing businesses in Georgia, such as office buildings, retail establishments and other facilities.

Several states (including Louisiana, North Carolina, Oklahoma, Utah, and Wyoming) have passed liability protection measures to mitigate the potential unsettling effect that traditional tort law could impose upon businesses reopening to the public during the COVID-19 pandemic. One fear is that retailers and other public-facing businesses – many of which were among the businesses most severely harmed by the shutdowns and shelter-in-place orders, and many of which continue to struggle under other public health orders remaining in effect – will face an onslaught of lawsuits from individuals seeking damages because they or their loved ones allegedly contracted COVID-19 on the businesses' premises.

On Aug. 5, 2020, Georgia Gov. Brian Kemp signed into law the Georgia COVID-19 Pandemic Business Safety Act (the Act), which limits liability for certain COVID-19 related tort claims. Owners and operators of public-facing businesses in Georgia, such as office buildings, retail establishments and other facilities, should consider the following issues and opportunities presented by the Act.

Immunity and Defenses Under the Act

The Act contains two key provisions that businesses can utilize to minimize potential liability for any COVID-19 "liability claim," which is broadly defined in the Act to include the "transmission, infection, exposure, or potential exposure of COVID-19 ... ." O.C.G.A. § 51-16-1.

First, the Act creates an "immunity" from all COVID-19 liability claims except in instances where a claimant can show that actions of healthcare facilities and providers, businesses, individuals, state government agencies and other "entities" in Georgia (collectively, the "Operators" and individually, an "Operator") constituted "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm." O.C.G.A. § 51-16-2(a). This means, for example, if a claimant sues for simple negligence, as opposed to gross negligence, any Georgia Operator can now assert this immunity as a complete defense to a COVID-19 related negligence claim.

Second, the Act creates a rebuttable evidentiary presumption in favor of Operators in Georgia that a claimant assumed the risk of possible COVID-19 related harm when the Operator posts certain warning signs on its property or prints certain warnings on a receipt or other proof of purchase for entry (discussed further below). Pursuant to the Act, Operators who comply with the warning requirements cannot be held liable for damages involving a COVID-19 liability claim, unless a claimant can show that an Operator's actions constituted "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm." O.C.G.A. § 51-16-3(a). This language creates a second barrier to liability for an Operator by creating an evidentiary presumption in favor of that Operator that a claimant assumed the risk related to COVID liability claims. Unlike the defense created under O.C.G.A. § 51-16-2, however, this presumption can, in theory, be challenged and rebutted by a claimant.

Operators can qualify for the rebuttable presumption available under O.C.G.A. § 51-16-3(a) in either of the following ways described in the Act:

Warning on Proof of Purchase

The Operator can issue the claimant a receipt or proof of purchase for entry to its premises that includes the following statement (in at least 10-point Arial font):

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 statement must have been printed in a certain format on a receipt or proof of purchase for entry, such as an electronic or paper ticket or wristband, issued to a claimant by the Operator for entry or attendance.

Warning Sign

Alternatively, the Operator can post a sign at the entry of its premises that contains the following statement (in at least 1-inch Arial font):

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.

Practical Benefit of the Act

The Act creates two significant hurdles for claimants to overcome when pursuing COVID-19 liability claims. Claimants are no longer able to bring regular negligence claims related to COVID-19, which are barred by the Act's immunity defense, and instead must claim liability by asserting claims of "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm," which are much harder to prove as they require a claimant to show recklessness and/or intent. Even if a claimant is able to state an actionable claim and survive a motion to dismiss based on the Act's immunity defense, the claimant may still be required to overcome the evidentiary presumption against him or her at summary judgment or trial so long as the defendant has complied with the warning requirements of the Act. It remains unclear at this time how or what a claimant must prove to overcome and rebut the presumption that the claimant assumed the risk of contracting COVID-19.

Limitations of the Act

The Act is unlikely to significantly alter the nature of COVID-19 claims brought by employees against their employers. In Georgia, employees cannot bring negligence claims against their employers, but instead must bring workers' compensation claims. O.C.G.A. § 51-16-5 specifically provides that the Act does not modify or supersede the terms of Georgia's workers' statutes. The Act also would not affect potential employer liability arising under federal statutes, such as the Occupational Safety and Health Act.

The Act has a sunset provision and applies only to any causes of action accruing through July 14, 2021.

Next Steps

Public-facing businesses in Georgia should consider the legal benefits offered by the Act in deciding whether or not to provide the statutory warnings to their customers and other invitees. While claims for "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm" do not qualify for the defenses provided in the Act, a business can create another layer of protection against COVID-19 liability claims by having the necessary warnings posted and availing itself of the evidentiary presumption that a claimant assumed the risk. There is also proposed federal legislation currently under consideration that would provide even more liability protection. (See Holland & Knight's previous alert, "COVID-19 Civil Immunity Under Proposed Federal SAFE TO WORK Act and State Laws," Aug. 13, 2020.)

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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