No Shirt, No Shoes, No Mask, No Entry, and (hopefully) No Lawsuits Under the Georgia Covid-19 Business Safety Act!
| Publication year | 2021 |
No Shirt, No Shoes, No Mask, No Entry, and (hopefully) No Lawsuits under the Georgia COVID-19 Business Safety Act!
Franklin Schrum
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The COVID-19 Pandemic continues to send shockwaves throughout the United States and all other nations by impacting much more than just the way we live and go about our normal day. Today, in most states, it is considered a common norm to see someone wearing a mask, frequently using sanitizer, or even stocking up on an abnormal amount of household items like toilet paper. Globally, over a million lives have been lost, businesses have become bankrupt, and the economy initially fallen substantially due to the Pandemic. Prominent retailers such as Brooks Brothers, J. Crew, and JCPenney have all filed for bankruptcy and more retailers and businesses will likely follow.1
Our society is highly dependent on businesses staying open and remaining operational. Ironically, our dependence on these businesses is likely one of the major reasons that COVID-19 is spreading at such an alarming rate. Take our dependence on Amazon for example, our nation uses Amazon every day and this company delivers millions of packages each day. It has been estimated that just one Amazon driver delivers over 200 packages per day,2 but what if this one Amazon driver had COVID-19 while delivering packages? This one Amazon driver could infect over a thousand people per week. Thankfully, businesses have increased safety precautions such as routine testing, checking employees' temperatures, and requiring employees to wear masks.
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However, due to the difficulty of actually detecting if one has COVID-19, there is no 100% guarantee that employees are free of COVID-19. This creates fear in all employers that they could be liable to customers for transmitting COVID-19 and ultimately be subject to an unbearable number of lawsuits.
In response to these concerns, states have begun to implement measures to reduce the number of lawsuits a business may face due to COVID-19 and to reduce the long-term effects of COVID-19 in order for our society to start moving in a positive direction. In Georgia, Governor Brian Kemp signed a new Act, the Georgia COVID-19 Business Safety Act, on August 5, 2020 and this law was put into effect immediately.3 In essence, the Georgia COVID-19 Business Safety Act encourages businesses to continue operation without facing liability for possibly transmitting COVID-19, which, in return, should reduce the number of COVID-19 related lawsuits, benefit the economy, reduce unemployment, and decrease the likelihood of more businesses going bankrupt. While it is clear that the Act, on paper, has a substantial impact from a legal and economic view, is it even possible to sue for the transmission of a disease? Will this Act truly be effective in reducing the number of COVID-19 related cases? Will this Act benefit Georgia as a whole or are there other factors that such as increasing the likelihood of COVID-19 cases that give reason to avoid legislation such as this?
This Comment first analyzes an overview of the Georgia COVID-19 Business Safety Act. Part II analyzes prior Georgia case law relevant to COVID-19 related claims. Part III discusses the legislative history to the Georgia COVID-19 Business Safety Act's codification. Part IV outlines the Georgia COVID-19 Business Safety Act itself and discusses key components within the Act. Part V focuses on what other jurisdictions are implementing and how the Georgia COVID-19 Business Safety Act is similar and/or different. Part VI explores the prior rights that certain businesses already and the oft notion of discrimination claims related to COVID-19. Lastly, Part VII, is a discussion on what types of impacts the Georgia COVID-19 Business Safety Act will have, whether positive, negative, or both, and how the Act may be amended in the future to provide further protection.
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The idea of taking legal action against another party for contracting a "disease through air particles" is one that Georgia, at a state-level, has not yet specifically addressed. Many might wonder if a claim such as this even has enough merit to survive all the way to trial. To help understand the validity of filing a claim for the transmission of a disease through air particles or—a COVID-19 related claim—Georgia's historical case law outlines a strong argument that creates a presumption that one can take legal action against another party for contracting COVID-19.
A. Disease related Civil Actions in Georgia Case Law
Under Georgia law, it is possible to bring a valid legal claim based on contracting a disease. For example, in Long v. Adams,4 the Georgia Court of Appeals held that, on its face, one who has contracted a sexually transmitted disease does have a valid claim.5 Plaintiff Long claimed that Defendant Adams was negligently liable for infecting Long with herpes.6 The trial court, however, granted summary judgment to Adams for Long's "fail[ure] to state a claim upon which relief could be granted."7 On appeal, the court turned to case law relevant in other jurisdictions, citing Duke v. Houston,8 a Washington Supreme Court case that stated, "[o]ne who negligently exposes another to an infectious or contagious disease, which such other person thereby contracts, can be held liable in damages for his actions."9 Ultimately, the court recognized that Long did state a valid cause of action based on the theory of negligence.10
This case establishes the basis for a disease-related civil claims. However, a sexual transmitted disease, such as herpes, is not spread through airborne particles, but spread through physical contact. This distinction is important because COVID-19 is known for spreading primarily through airborne particles. Although, while no Georgia case law has addressed a specific disease that is spread through air particles, Long did not place a limit on disease-related claims that are
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only contracted through physical contact. The Washington Supreme Court's case that Long relied on was extremely broad. The word choice used in Duke, such as "exposed" and "infectious or contagious," places no limitation that would imply one can only have a disease-related claim through physical contact. In addition, Georgia case law has established valid civil claims related to injury by harmful air particles.
B. Civil Actions related to Air Particles under Georgia Case Law
In Harper v. Barge Air Conditioning, Inc.,11 the Plaintiff had a valid cause of action against the Defendant for essentially transmitting harmful air particles that procured a need for medical treatment.12 Defendant's employee serviced Plaintiffs air conditioning unit.13 Later that same day, the Plaintiff passed out and was rushed to the hospital.14 The Plaintiffs blood test showed high levels of carbon monoxide, and the fire department's testing within the building showed high levels of carbon monoxide as well.15 The trial court granted Defendant's motion for a directed verdict and the Plaintiff appealed.16 The court held that "this case would support a theory of res ipsa loquitur," which is a variation of negligence.17 This theory leaves a permissible inference of negligence left to the jury to accept or reject.18 Therefore, this case illustrates that a Plaintiff may have a valid claim for harmful air particles and this type of action is likely a question for the jury.19
Long established the validity of disease-related claims while not expressly limiting the scope of these disease-related claims to merely physical contract20 and Harper showed the validity of civil claims from exposure to harmful air particles.21 These cases, coupled together, demonstrate the validity of a claim for a COVID-19 related case. Especially while in the midst of a Pandemic, many of the Georgia Legislature likely realized the validity, or at least the plausibility, of a
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COVID-19 related case and the likelihood of businesses being berated with these types of suits. Thus, the Georgia COVID-19 Business Safety Act was introduced to the Legislature in anticipation of deterring an alarming volume of COVID-19 related cases.
In response to the rapid spread and impact of COVID-19, it had become apparent to the Georgia Legislature that businesses were at a substantial risk of facing vast amounts of lawsuits related to COVID-19 and required certain protection in order to continue any level of operation. The origin of the Georgia COVID-19 Business Safety Act, prior to codification, is found in Senate Bill 359.22 Senators Chuck Hufstetler, Blake Tillery, Brian Strickland, John Albers, Kay Kirkpatrick, and Ben Watson all, collectively, sponsored Senate Bill 359.23 For Georgia's House of Representatives, Senate Bill 359 was sponsored by Trey Kelley.24
Shortly thereafter on June 26, 2020, Senate Bill 359 was passed by both the Georgia Senate and the Georgia House of Representatives during the last minutes of the 2020 legislative session.25 The Georgia Senate voted 34 to 16 in favor of passage and the Georgia House of Representatives voted 104 to 56 in favor of passage.26 Then, Senate Bill 359 was sent to the Georgia Governor's office to await the Governor's signature, thus enacted it into law.
On August 5, 2020, Governor Brian Kemp signed Senate Bill 359, thereby creating and enacting the Georgia COVID-19 Business Safety Act.27 Not only did Governor Kemp sign the Georgia COVID-19 Business Safety Act, but Governor Kemp made the effective date or enforceability of the Georgia COVID-19 Business Safety Act on the very same day, August 5, 2020.28 This demonstrates the level of significance both Governor...
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