By Cody W. Lyons
Over the last several months, our nation has experienced one of the largest economic shocks in history, with small businesses being hit the hardest. After months of steeply declining revenues due to mandatory closures and public fear, countless small businesses have had to shut their doors permanently. For the fortunate businesses that have been able to survive thus far, however, countless threats remain. A study recently published by the Proceedings of the National Academy of Sciences of the USA found that approximately 75% of the small businesses studied only had enough cash on hand to last for two months or less (https://www.pnas.org/content/117/30/17656). With the extreme uncertainty businesses are facing today, it is now more important than ever to protect yourself and your business from liability.
As many businesses begin opening their doors to the public again, it is important to consider the potential liability that can arise if an individual is allegedly exposed to COVID-19 during his or her encounter with the business. While a claim for damages relating to exposure to COVID-19 would require a plaintiff to satisfy a difficult burden of establishing a causal link, even preliminary litigation proceedings have the potential of bankrupting economically fragile small businesses. To protect from COVID-19 claims, some businesses, such as restaurants and retail shops, have resorted to requiring customers to sign liability waivers before entering their premises. The effectiveness of these waivers remains unclear, as courts have yet to rule on their enforceability, and some business owners worry that their business could suffer if customers are unwilling to sign a waiver. In the face of these concerns and in an attempt to alleviate the threats posed by overzealous tort lawyers, Governor Kemp has recently signed a law that is designed to protect businesses from liability regarding COVID-19 claims.
Senate Bill 359, known as the Georgia COVID-19 Pandemic Business Safety Act, was signed into law on August 5, 2020. This law is designed to shield businesses and other entities from certain civil claims related to COVID-19. Under the new law, in order to bring a claim against a business for having contracted COVID-19, a plaintiff must prove that the business was acting with gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
In addition, this new law prescribes language for a specific disclaimer describing many of the dangers posed by COVID-19, which may be posted at the entrance of an establishment. The notice provides: "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." When the statutory disclaimer is posted for patrons and customers to see, it establishes a presumption that, by entering the premises, the patron or customer assumes the risk of being exposed to COVID-19, and thus cannot bring a lawsuit for contracting the virus.
By passing the Georgia COVID-19 Pandemic Business Safety Act, the Georgia Legislature emphasized the critical importance of protecting small businesses against abusive litigants during this unprecedented time of crisis and uncertainty. To significantly reduce the risk of being subject to a COVID-19 related lawsuit, businesses should be proactive in implementing and enforcing the recommendations of the CDC and other health-related organizations. Additionally, it may be beneficial for businesses to post disclaimers and take advantage of the added protections afforded by the Georgia COVID-19 Pandemic Business Safety Act. As businesses are beginning to increase their operations and human interaction, it is important to continue to follow all laws, orders, and guidelines regarding the spread of COVID-19, as compliance with these regulations will greatly reduce the risk of being open to legal claims.
Cody Lyons is an associate at Flint, Connolly & Walker LLP having recently graduated from the University of Georgia School of Law (Class of 2020). If you need advice or assistance in protecting your business from COVID-19 claims or other liabilities, the attorneys at Flint, Connolly & Walker, LLP have the knowledge and expertise to help you.