Gov. Kemp Signs Senate Bill 359; Enhances COVID19 Liability Protection for Business and Other Entities in Georgia

Earlier this week, Georgia Governor Brian Kemp signed into law Senate Bill 359 – the Georgia COVID-19 Pandemic Business Safety Act – passed by the Georgia legislature to provide certain liability protections for Georgia businesses, healthcare providers, religious and education organizations, government offices and volunteer organizations among other things.

Under the Act, no covered healthcare facility, individual, business or other covered organization, can be held liable for damages involving a COVID-19 liability claim, unless it is proven that the facility, business, individual or covered organization showed, “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. For this Act, a COVID-19 liability claim is a cause of action for the “transmission, infection, exposure, or potential exposure of COVID-19 to a claimant” that results in injury or death of a claimant.

Further, for COVID-19 liability claims there shall be a rebuttable presumption of assumption of the risk by a claimant for a claim on the premises of the business or entity if the business or entity posts a sign at the point of entry to the premises in at least one-inch Arial font, placed apart from other text, a warning with this precise wording:

“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 businesses or entities that have public gatherings, there is other language that should be used on a receipt or proof of purchase for entry (such as a ticket – whether in paper or electronic format) as set forth in new code section O.C.G.A. 51-16-3(a)(1). In addition to the required text, there is also font size requirements for that (10 point or larger Arial font) and the required text is to be placed apart from any other text.

As an aside, when the law says the wording needs to be in 1 inch text, at a minimum, that’s part of the law. So, if you’re going to put this warning language on your business door or nearby and make it fit on an 8.5″ x 11″ piece of paper, that obviously does not comply with the law. If there is a lawsuit, expect the plaintiff’s attorney to argue that the warning, and therefore the rebuttable presumption of risk, is not effective, because the business did not comply with the letter of the law (pun intended).

This Act will apply to causes of action that arise up until July 14, 2021, and became effective upon the Governor’s signature on August 5, 2020. Presumably, the legislature could seek to amend the Act in the next legislative session to extend the protections if it is deemed appropriate given then current conditions.

So, what does this really mean for businesses, entities, and others that could be covered by this new Act? First, as I understand it, I think it may be very difficult in the best of circumstances to prove when, where and how someone was infected by COVID-19. To me, that seems to make a lawsuit against a business or other covered entity somewhat challenging to begin with. Nonetheless, I’m sure that there may be some lawsuits filed relating to claims of exposure to or infection of COVID-19 and alleging damages for various injuries both physical and economic. As such, this Act will help businesses and entities defend themselves in a suit for such damages. Note that the Act is not itself a bar to a lawsuit, and claimants may still bring a lawsuit and allege that a business, entity or other covered organization acted with gross negligence or intentionally inflicted harm. So, businesses should still be smart and follow recommended safety guidelines. Second, utilizing signage as set forth in the Act may prove wise as well. For that assumption of risk defense, care should be taken to use the exact wording of the warning as set forth in the text and follow the required font and sizing requirements. Third, there may be certain precautions and other guidance that would be applicable to your type of business or entity, so, be sure to consult with your counsel about how to best protect from COVID-19 related claims.

The bill itself can be found at this link: https://gov.georgia.gov/document/2020-signed-legislation/sb-359/download