Businesses’ Liability for COVID-19 Injuries and Governor Ivey’s Order
May 14, 2020
By: Blake Brookshire and Barbara Wells
Can someone sue a business over a COVID-19 injury?
As Alabama’s business contemplate reopening or adapting to new ways of doing business, many express concern about liability. If contact tracing shows a customer picked up COVID-19 at a business, can the customer sue the business? If an employee gets infected at work, is the employer liable? Should healthcare providers be worried about malpractice claims for missed diagnoses? As with most things COVID-19, uncertainty abounds.
Legislative help is unlikely.
The United States Congress has considered some legislation that might provide some immunity from liability for those businesses operating during the pandemic. The Alabama Legislature has considered similar bills. Such legislation is not completely novel. For example, federal law provides vaccine manufacturers with immunity from suit. At the time of this article, that legislation appears unlikely to pass at either the state or federal level.
Governor Ivey has tried to help.
On May 8, 2020, Governor Ivey amended her State of Emergency Order for the eighth time. This time she included a provision that gives immunity from liability based on COVID-19 related suits to businesses, health care providers, and other covered entities. The Order’s immunity applies to any claim arising from March 13, 2020 through the end of the state of emergency.
The Order provides that a covered entity will not be held liable for a death, injury, or damage to property related to “COVID-19 transmission or a covered COVID-19 response activity” unless the claimant can show by clear and convincing evidence that the responsible entity acted wantonly, recklessly, willfully, or intentionally. This is notable as it not only limits the circumstances of when a plaintiff may bring suit against an entity but also changes a plaintiff’s burden of proof from the ordinary preponderance of the evidence standard (is it more likely than not that the employer caused the injury) to a more stringent clear and convincing standard (highly and substantially more probable to be true than not). Bottom line, if effective and enforceable, this Order makes it much more difficult for suits relating to harm from COVID-19 transmission.
What time frame does the immunity address?
The Order applies to claims that arise out of injury after Order. It also purports to establish a retroactively bar to any claims that may have arisen since March 13, 2020. If a court finds that the Governor’s retroactive immunity grant is outside the scope of her authority, some or all of it may be inoperable. The Order provides that covered entities “shall not be liable for negligence, premises liability, or for any non-wanton, non-willful, or non-intentional” claim related to COVID-19 unless the plaintiff can prove that the covered entity “did not reasonably attempt to comply with the then applicable public health guidance.” Further, if the retroactive application does not apply, then the remedies are limited to economic compensatory damages and the covered entity cannot be held liable for mental anguish, emotional distress, or punitive damages (except for a wrongful death cause of action).
Are there exceptions to the immunity?
The Governor’s Order provides a notable exception. Specifically, it states that none of the Order’s provisions apply to claims made under the Workers’ Compensation Act. Presumably, employers may expect to experience employee claims under the Workers’ Compensation Act if they fall within its provisions.
Why should businesses still use reasonable caution?
Despite the Governor’s proactive response to preventing COVID-19 centered litigation, businesses should still exercise caution. The Governor’s Order cannot prevent all foreseeable sources of litigation. Indeed, the text of the Governor’s Order itself envisions a possible challenge to its validity. Undoubtedly, some plaintiffs will test the constitutionality of this immunity grant under the Governor’s Order. Therefore, it is possible that an Alabama Court could find the Order’s grant of immunity unconstitutional. This could strip businesses of the Order’s protections.
Because the immunity in the Order excludes claims for wanton, willful, or intentional conduct, the door is still open for lawsuits. There is little to stop a plaintiff from pleading that a covered entity acted wantonly, recklessly, willfully, or intentionally. While the plaintiff may not be able to later prove this, the business would have to engage in expensive and time-consuming litigation to assert these protections. In addition, the immunity does not preclude workers’ compensation claims. Finally, the Governor can only protect businesses from claims pursuant to State law and cannot provide immunity from claims pursuant to Federal law.
The Governor’s Order may provide some civil immunity to businesses during this crisis. Nevertheless, businesses should still engage in best practices to prevent any potential lawsuits. We are already seeing plaintiffs filing lawsuits related to COVID-19 injuries. We expect more.
Disclaimer and Contact Information:
This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The information provided is not legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, consult with an adviser who has been provided with all facts relevant to your particular situation.
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If you have questions about what to do with your business or company during the COVID-19 pandemic, call Capell & Howard at 334-241-8000 and ask for: Chris Weller, Lister Hubbard, Brooke Lawson or Carla Gilmore.