November 05, 2020 BY Lara Ortega
Safety Dance: Georgia COVID-19 Pandemic Business Safety Act
On August 5, 2020, Georgia became the ninth state to enact legislation aimed at protecting businesses from liability related to COVID-19 transmission. Codified at O.C.G.A. § 51-16-1, et seq., the Georgia COVID-19 Pandemic Business Safety Act states that entities, individuals, healthcare providers, and healthcare facilities cannot be held liable for deaths related to COVID-19 transmission, infection, exposure, or potential exposure, unless a plaintiff is able to prove gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
Further, the Georgia COVID-19 Pandemic Business Safety Act allows businesses the opportunity to take advantage of two different methods of raising a rebuttable presumption that anyone entering the premises has assumed the risk of contracting COVID-19 (absent a finding of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm). The first method involves language that must be included on receipts and/or proofs of purchase for entry (including paper tickets or wristbands). To utilize this method of raising the rebuttable presumption, the receipt/proof of purchase must be issued by the business to the plaintiff, and must include the following statement in at least 10-point Arial font placed apart from any other text:
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 second method involves posting a warning sign per specific statutory requirements. The warning sign must be posted at the entrance to the premises and include only the following language in one-inch (or larger) Arial font:
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.
It should be noted that healthcare facilities and healthcare providers can only raise the rebuttable presumption that anyone entering the premises has assumed the risk of contracting COVID-19 by posting the above-described sign at a point of entry. Per the language of the statute, it appears that it is not sufficient for healthcare facilities or healthcare providers to simply include this language on receipts, wristbands, or other proofs of purchase.
Of course, The Georgia COVID-19 Pandemic Business Safety Act is so new that no case law has yet been decided with respect to same. That said, there are some key takeaways that can be determined from the statutory language itself. First, the ability to raise a rebuttable presumption that a plaintiff assumed the risk of contracting COVID-19 by entering the premises is merely a defense that can be used once a plaintiff files a claim or lawsuit. In other words, this Act does not prevent plaintiffs from filing claims or lawsuits against businesses with respect to COVID-19 transmission. Under Georgia law, there are three elements generally considered in determining if a plaintiff assumed the risk: (1) plaintiff had some actual knowledge of the danger (in this case, COVID-19 transmission), (2) plaintiff understood and appreciated the risk, and (3) plaintiff voluntarily exposed herself to the risk. Desai v. Silver Dollar City, Inc., 229 Ga. App. 160, 493 S.E.2d 540, 544 (1997). Accordingly, the Act provides businesses with mechanisms (such as posting a sign with the above-described language at a point of entry) to raise the presumption before a jury that all three of these elements have been met.
Second, even once the rebuttable presumption is raised, businesses may be potentially liable for damages if the plaintiff is able to prove gross negligence, willful and wanton misconduct, reckless infliction of harm and/or intentional infliction of harm. It is difficult to tell at this early stage what acts or omissions on the part of businesses or other entities will be found by Georgia courts to rise to the level of gross negligence, willful and wanton misconduct, etc.; however, as a matter of enacting “best practices”, businesses would be wise to follow social distancing, mask-wearing, personal protective equipment (PPE), and/or limited capacity recommendations issued by state and/or local governments.
Third, it must be noted that the provisions of this Act are intended to be temporary. As of now, the law only protects Georgia businesses and their owners for potential or actual exposures to COVID-19 that occur through July 14, 2021. As with many other emergency orders issued during this pandemic, it remains to be seen whether the provisions of this Act will be extended into the future.
In light of the temporary nature of these protections, businesses must be sure to document any actions they take in order to raise the rebuttable presumption that people entering their premises assumed the risk of COVID-19 transmission. This is especially important since COVID-19 transmission may not become apparent in a plaintiff for days or even weeks after visiting a business, so businesses may not be aware of any alleged issue until well after the fact. Thus, it is important that businesses create written (or photographic) documentation showing that receipts were issued to customers and/or signage was posted at a point of entry with the statutory language. Ideally, this documentation would include the effective dates that the above-described methods were used or posted, as well as the identity of the employee(s) who were responsible for ensuring that the requirements of the statute were met. That way, evidence will be created that businesses and their defense counsel can use down the road to raise a rebuttable presumption that the plaintiff assumed the risk of COVID-19 transmission before entering the premises, in the event that a claim or a lawsuit is ever filed.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley