Last week, Georgia's Governor Brian Kemp signed the Georgia COVID-19 Pandemic Business Safety Act into law. We told you about it here. This law is designed to shield businesses and healthcare providers from civil liability for coronavirus-related injury and death.
Further, there's a push to enact a federal law that would make it even more burdensome for a plaintiff to recover. A potential plaintiff would have to not only establish the business was grossly negligent or willfully engaged in misconduct (as if that's not a high enough burden), but would also have to show that the business failed to make "reasonable efforts" to comply with applicable public health guidelines. We told you about that one here.
In Georgia now, all employers have to do to protect themselves is to post a COVID warning sign in their window, and voilà, the risk passes entirely to the person who chooses to enter. It's a little like Dante's passage through the gates of hell, inscribed with the words “Abandon all hope, ye who enter here,” but in this case, it's about abandoning hope of recovery, even where the employer may not be complying with safety guidelines.
First, it's understandable that we want to give certain businesses some insulation against an avalanche of lawsuits. It's in everyone's best interest to make sure that some actual businesses are still standing when this mess is over, but legislators, let's use our noodles here. Every business doesn't deserve a big fuzzy blanket of protection. We want to encourage continued safety measures by businesses, not have them toss all caution to the wind as the Georgia law does and the proposed federal legislation would do.
Remember how we play this game?
The initial burden on the plaintiff should only require them to establish their prima facie case. Therefore, the first inquiry should be whether the plaintiff can demonstrate by contact tracing or other evidence that they contracted COVID at the business in question.
If they can't, game over.
If they can, then the burden should properly shift to the business. In that case, the next inquiry is whether the business can demonstrate it was following the recommended safety precautions that were in place at the time. While I think we can all agree that the guidelines aren't very well-written and change almost daily, the onus to comply with those guidelines as a minimum standard (and to document that compliance) should be placed squarely on the business. If the business can demonstrate that it did all it could reasonably do to comply and prevent the spread of COVID, then shielding the business from liability might be a reasonable thing to do, as might caps on damages in the absence of a complete shield. But where a business cannot demonstrate compliance, there shouldn't be a shield at all. And only then should come the question of whether the conduct of the business rose to the level of negligence or gross negligence or willful misconduct.
And if that's not clear? Then continue to play the game fairly and let a jury sort it out.