Late on August 5, 2020, Governor Kemp signed the Georgia COVID-19 Pandemic Business Safety Act (“GCPBSA”). As discussed in our July 7, 2020 article, the GCPBSA affords businesses in Georgia with liability protection against claims related to the contraction of COVID-19 that accrue before July 14, 2021. Importantly, the GCPBSA creates a rebuttable presumption of assumption of the risk except in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
Generally, assumption of the risk is a defense to liability that applies when a claimant has actual knowledge of the danger, understood and appreciated the risk associated with such danger, and voluntarily exposed himself to those risks. The claimant must have actual and subjective knowledge of the specific, particular risk of harm associated with the activity or condition that causes injury, rather than general, non-specific risks. The burden to prove that the claimant assumed the risk is ordinarily on the business or individual sued.
The GCPBSA, however, creates a rebuttable presumption that the claimant assumed the risk of injury. A rebuttable presumption is a presumption that is assumed to be true absent evidence to the contrary. Therefore, under the GCPBSA, a business need not prove the elements of assumption of the risk where a claimant sues for injuries related to the contraction of COVID-19: it is automatically presumed that the claimant assumed the risk. However, the presumption is rebuttable. This means that any claimant that sues a business for injuries related to the contraction of COVID-19 is presumed to have assumed the risk, unless the claimant can put forth evidence that they did not assume the risk.
In order to qualify for the rebuttable presumption under the GCPBSA, businesses selling tickets for entry need to include the following statement on receipts or proof of purchase for entry (i.e. electronic/paper tickets or wrist bands):
“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 of entity of the premises.”
The text must be printed in at least ten (10) point Arial font and placed apart from any other text.
For businesses who do not sell tickets for entry, the liability protections under the GCPBSA can be achieved by posting large signs at points of entry that state the following:
Under Georgia law, there is no liability for any 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.”
The text must be printed in at least one (1) inch Arial font and placed apart from any other text.
It is important to note that the GCPBSA does not absolve businesses completely of liability or of their obligation to prevent unnecessary risk and harm to their customers. Similar to liability releases and waivers, the GCPBSA does not afford the protection of the rebuttable presumption of assumption of the risk in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. Under Georgia law, these claims will generally arise where businesses fail to offer even minimal protections to their customers.
Therefore, even with the additional liability protection offered by the GCPBSA, businesses must continue to use common sense to combat COVID-19 and to protect themselves from liability and their customers from unnecessary exposure. All Georgia businesses should therefore comply with Governor Kemp’s executive orders that can be found online here. Additionally, Georgia businesses should continue to adhere to the latest CDC guidance related to COVID-19 published online here.
The combination of Governor Kemp’s executive orders and the CDC’s guidance should also aid in reducing the chances of infection and spread as they are presumably based on the latest science and data available. Additionally, whatever businesses can do to document proof of compliance with the executive orders governing specific business operations, they would be well-served to do so for evidence to combat potential claims may arise in the future.