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During this pandemic, Florida businesses are caught between a rock and hard place.  If they open too soon, they risk lawsuits from customers claiming they acquired COVID-19 at their business.  If they remain closed or operate at limited capacity, they face the possibility of going out of business.  Fortunately, relief has arrived in the form of new legislation creating a liability shield.  This legislation, signed by Governor Ron DeSantis on March 29, 2021, protects covered entities from civil liability if they can demonstrate a “good faith effort to substantially comply” with authoritative or controlling government-issued health standards to prevent the spread of COVID-19.   If the entity can demonstrate it made a good faith effort, it is immune from civil liability.

What the Florida COVID-19 liability shield covers

This new law (Florida Statute §768.38 – Liability protections for COVID-19-related claims), protects certain businesses, governmental entities, educational institutions, individuals and other entities from lawsuits related to COVID-19 if they made a good faith effort to abide by public health guidance at the time the cause of action accrued. This immunity shield is in addition to any immunity already provided, such as workers’ compensation protection for tort claims by employees against employers.

So, what’s the skinny on this new law? 

To lessen the traffic in Florida’s courts and to aid in the state’s economic recovery, the new law creates several hurdles for plaintiffs seeking to sue for injuries (or wrongful death) stemming from the coronavirus.  Specifically, the new law heightens the burden of proof in lawsuits alleging injury from COVID-19 from an ordinary negligence standard to a “gross negligence” standard.  Under Florida law, “gross negligence” means that the defendant’s conduct was so reckless or wanton in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct. This an extremely high threshold for plaintiffs to overcome.

The new law also raises the standard of proof in COVID-19 related lawsuits to a higher threshold. Where ordinary negligence can be shown by a “greater weight of the evidence,” plaintiffs must now show by “clear and convincing evidence” that the gross negligence of a defendant caused plaintiff’s COVID-19-related injury.  In addition, the complaint must be pled with particularity and be accompanied by an affidavit signed by a physician, which attests that the plaintiff’s damages, injury, or death occurred as a result of the defendant’s acts or omissions.  (The rules for actions against a health care provider have different standards of proof and evidentiary requirements.  See Fl. Stat. § 768.381.)

Liability shield limitations

The new law has a one-year statute of limitations, which is much shorter than the normal four-year statute of limitations applicable to most tort claims.  It also applies retroactively, except to claims that commenced before the law’s effective date (i.e., March 29, 2021).

Where do we go from here?

The exact parameters of Florida’s COVID-19 liability shield will be sorted out in the coming months and years.  Much of the litigation is likely to center around what constitutes “reckless or wanton” conduct or what constitutes a “good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance.”  Consequently, employers also are well advised to document efforts made to comply with applicable guidance from the CDC, Florida Department of Health, the Occupational Safety and Health Administration, and local governmental agencies.  As always, seeking advice from legal counsel is critical as the Florida courts interpret and apply this new law.