Combating the Impact of COVID-19: COVID-19 Liability Shield


The COVID-19 outbreak threatened the viability of businesses and institutions that contribute to the overall well-being of Florida.  In an effort to restart the economy and fight back against the economic impact of COVID-19, the Legislature enacted laws intended to provide businesses with “heightened legal protections against liability as a result of the COVID-19 pandemic” by discouraging lawsuits against businesses and other entities for all but the most egregious claims. The motivation behind this legislation was to encourage businesses and institutions to reopen so that they remain viable and continue to contribute to this state.


Claims Against Non-Health Care Providers


Florida Statute Section 768.38 provides protection for non-healthcare providers including businesses, educational and religious institutions against “COVID-19 related claims.”  A “COVID-19 related claim” refers to a claim for civil liability against a person, whether is a natural person, a business, or other entity, which arises from or is related to COVID 19. A perfect example of this is when a person goes to a store and contracts COVID-19, and then sues the business. As a jumping-off point, these types of cases were always going to pose a challenge in terms of providing causation. The burden was heightened with this statute.


The statute sets forth a two-prong test to successfully assert a claim. First, the basic pleading requirement: plead with particularity. Typically, this is a heightened pleading standard that is required for claims of fraud.  Additionally, a plaintiff will need to submit to the Court a supporting affidavit from a physician licensed in the state of Florida opining that “within a reasonable degree of medical certainty” the plaintiff’s COVID-19 injuries or death “occurred as a result of the defendant’s acts or omissions.” The Court is required to dismiss any complaint that fails either element without prejudice.


The second prong relates to the defendant business’s “good faith effort” to comply with COVID-19 guidelines.  Here, the court will determine if the business made a “good faith effort to substantially comply” with governmental standards or guidance at the time the cause of action accrued. If the Court determines that a “good faith effort” was made, then the defendant enjoys immunity. On the contrary, if the court determines that the defendant did not make such a good faith effort, the plaintiff may proceed with the actions. The burden of proof is upon the plaintiff to demonstrate that the defendant did not make a good effort.


Even if a plaintiff is able to overcome these pleading hurdles, they will still face an uphill battle to prove their case.  The statute requires proof by “clear and convincing evidence” that the defendant acted with “at least gross negligence” to succeed.


As businesses attempt to get back to “normal” they should consider two things. First, if have not already, business owners should ensure they are “substantially complying” with government standards. This means following State, local, or CDC guidelines and requiring employees to comply with these standards.  It is similarly advisable to update employee handbooks and policies to comply with government guidance. Second, keep track of the law, especially how courts are applying the “good faith effort” standard.


To learn more about this topic or find out your legal rights, contact Sheehe & Associates at 305-379-3515.

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