Recently passed §768.38, Fla. Stat. provides heightened liability protections for entities that made a good faith effort to comply with COVID-19 health standards against COVID-19-related claims due to the threat of unknown and potentially unbounded liability lawsuits that may arise from the pandemic. The heightened liability protections against COVID-19-related claims extend widely to persons, businesses, educational institutions, government entities and religious organizations.[1]
Some of these potential claims stem from a consumer’s alleged exposure to COVID-19 at a business entity. For example, many cruise ship passengers have filed lawsuits alleging that the cruise line exposed them to the virus or caused them to contract the virus while on a cruise. Under §768.38, Fla. Stat., a COVID-19-related claim is defined as a civil liability claim for damages, injury, or death that arises from or is related to COVID-19.
“As businesses and entities struggle to re-open or keep their doors open, a growing concern has been expressed that unfounded or opportunistic lawsuits for COVID-19-related claims could threaten their financial survival. The concern is that time, attention and financial resources diverted to respond to the lawsuits could be the difference between individuals and entities succeeding or failing as they attempt to emerge from the pandemic. One protection that has been offered is the provision of heightened legal immunity from COVID-19 claims to fend off meritless lawsuits and preserve scant resources.”[2]
A plaintiff bringing a COVID-19-related civil action against a party protected under §768.38, Fla. Stat. will have to meet heightened burdens in comparison to bringing an ordinary personal injury negligence claim.
The Plaintiff’s Preliminary Steps:
First, the court must determine, as a matter of law, whether the plaintiff complied with the following:
Essentially the plaintiff will need to file his complaint with an expert’s affidavit in hand and assert facts supporting his allegations with particularity – a burden that is far greater than the current standard for bringing an ordinary personal injury negligence action.
If the plaintiff fails to meet these requirements, the court must dismiss the action without prejudice. The plaintiff is not barred from correcting the deficiencies and refiling the claim.
The Good Faith Compliance Burden
The court will determine, as a matter of law, whether the defendant made a good faith effort to substantially comply with the authoritative or controlling government-issued COVID-19 health standards or guidance at the time that the cause of action accrued.[3] It is the plaintiff’s burden to demonstrate that the defendant failed to make a good-faith effort.[4]
If the court determines that the defendant made a good faith effort, the case is dismissed, and the defendant is immune from civil liability. If, in contrast, the court determines that the defendant did not make a good faith effort, the plaintiff may proceed with the litigation.
The statute goes on to state that the defendant is not liable for any act or omission relating to a COVID-19-related claim if the plaintiff cannot establish that the defendant acted with at least gross negligence (a high burden to meet) proven by clear and convincing evidence. Florida courts have defined gross negligence as the type of conduct that a reasonably prudent person knows will probably and most likely result in injury to another person.
Statute of Limitations
A plaintiff is required to bring the COVID-19-related civil action within one year after the cause of action accrues.[5] This deviates from the general rule that a plaintiff is required to bring a negligence action within four years.
Florida has followed the recent trend in providing protections to these entities as several other states have also enacted COVID-19 liability protections.
This recent statute should encourage businesses and other protected entities to comply with government-issued COVID-19 health standards or guidance to prevent the spread of COVID-19 while also protecting their entities from meritless claims.
[1]Certain health care providers are protected under recently enacted §768.381, Fla. Stat.
[2]https://www.flsenate.gov/Session/Bill/2021/72/Analyses/2021s00072.pre.cm.PDF
[3]If more than one source or set of standards or guidance was authoritative or controlling at the time the cause of action accrued, the defendant’s good faith effort to substantially comply with any one of those sources or sets of standards or guidance confers such immunity from civil liability. Id.
[4]At this stage, the only admissible evidence is limited to evidence tending to demonstrate whether the defendant made such a good faith effort.
[5]Or within one year after the effective date of the statute if the cause of action accrued before the effective date of the statute.
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