COVID-19 Liability Shield Survives Salty Debate In Fla. Senate

By Nathan Hale
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Law360 (January 25, 2021, 10:38 PM EST) -- Legislation to shield Florida businesses from potentially crippling COVID-19 personal injury lawsuits survived its first Senate committee stop intact Monday, but what may become known as the "Saltshaker Debate" appeared to set the stage for intense discussion over lawmakers' priorities and whether the measure would tip the scales too far.

S.B. 72, which would raise the bar for such pleadings and provide immunity for defendants who made good faith prevention efforts, advanced out of the Senate Judiciary committee on a 7-4 party-line vote, after the panel rejected four amendments proposed by Democratic members.

Opposing a suggestion to replace the bill's requirement for plaintiffs to show clear and convincing evidence or at least gross negligence to requiring just a demonstration of simple negligence by the greater weight of the evidence, bill sponsor Sen. Jeff Brandes, R-St. Petersburg, said such a standard could result in a server's failure to replace or wipe down a saltshaker between guests leading to a restaurant's downfall.

"Under your standard, somebody could lose their small business because of that saltshaker," Brandes, who is also the Judiciary chair, told Sen. Tina Scott Polsky, D-Boca Raton, of her amendment.

Polsky, a lawyer and mediator by trade, called the saltshaker example "unfair," saying such lawsuits "aren't even occurring." But the idea stuck in the minds of committee members and other stakeholders throughout the rest of the more than two-hour debate.

Supporters of the bill latched onto the saltshaker example to emphasize that just the threat of litigation has kept businesses shuttered and in need of legal protections and to push back on arguments that the legislation is really driven by big businesses.

"They need to be able to make sure that someone is not going to go in there and sue them for a saltshaker and shut down their business," said Brewster Bevis of Associated Industries of Florida.

"I assure you this bill is about the small-business owners and it is about the saltshaker," added Bill Herrle, executive director of the National Federation of Independent Businesses. "They need to know that you have their back."

Democrats also brought it up while explaining their votes against the current bill.

"We care about businesses big, small and their saltshakers," said Sen. Perry E. Thurston Jr., D-Fort Lauderdale. "But blanket immunity that we have here is not what I think should be our first line of attack on this virus that has plagued our communities."

"If we're going to continue to talk about this saltshaker, we know that touching was a way of transmission. So, if you left the saltshaker there, you didn't care. If you left the napkin container there, you didn't care," said Sen. Audrey Gibson, D-Jacksonville, arguing that the bill needs to be more specific about what constitutes "a good faith effort to substantially comply" with government orders or guidelines to qualify for immunity.

The bill drew comment from a variety of groups, with support also coming from the Florida Chamber of Commerce, the Florida Retailer Federation and the Florida Justice Reform Institute, and opposition from plaintiffs attorneys through the Florida Justice Association, the AFL-CIO and the Florida chapter of the National Organization of Women.

As it stands, the bill would require any lawsuit that brings a COVID-19-related claim for damages, injury or death to be pled with particularity. The complaint also must be accompanied by an affidavit signed by an active physician attesting that "within a reasonable degree of medical certainty, the alleged injuries or damages were the result of the defendant's acts or omissions."

The court must dismiss the complaint without prejudice if either of those requirements is not met, according to the bill.

The legislation also requires the court to determine whether the defendant made a good faith effort to substantially comply with government-issued health standards or guidelines.

Such a finding would impart immunity from civil liability on the defendant. If the court finds such efforts were lacking, the plaintiff still must show clear and convincing evidence of at least gross negligence, according to the bill.

Critics expressed concern that certain language in the bill is too vague and needs narrowing. In addition to Gibson's question about "good faith," she and others also asked what regulations or guidelines businesses were expected to follow. Brandes said the bill is keyed to the governor's COVID-19 executive orders, but he also made references to orders from the U.S. Centers for Disease Control and Prevention.

The requirement for a physician's affidavit troubled Democrats, who said it appears to ask doctors to make legal conclusions and do more than is possible or even necessary to ferret out frivolous claims.

"Asking them to swear under oath where this person got it is unfair to physicians and beyond the pale," Polsky said, suggesting it would be more reasonable to have doctors determine if the claimant had COVID-19 during the alleged time frame and if it caused their injury or death.

Polsky also said she fears requiring clear and convincing evidence of gross negligence will prove impossible for any plaintiff to satisfy, while a "reasonable person standard" instead would suffice by being applied in the context of a business owner operating in a pandemic.

The purpose of the bill should be to encourage businesses who took proper precautions such as giving workers sick leave, spacing out tables and having employees wear masks, but the bill currently may have the reverse effect, she suggested.

"I think this bill may potentially forgive those businesses who did not take the time to do those things or invest the money to make a safer workplace or place to do business," Polsky said. "And I don't think that's what we want."

In his closing arguments, Brandes pushed back on arguments that lawmakers are wrongly prioritizing businesses over citizens and front-line workers by addressing this bill early in their deliberations by pointing out that the bill also applies to other entitles, including educational and religious institutions, and he pledged efforts will be made separately to address protections for health care providers.

Brandes also argued that more specific language proposed by Democrats would have meant that these entities would have had to "wholly comply" with government orders to avoid liability, and he defended the bill's gross negligence standard.

"It's not an impossible standard to overcome, but it is a difficult standard to overcome," he said.

Stops in the Commerce and Tourism Committee and the Rule Committee remain for S.B. 72, while an identical bill, H.B. 7, is being considered in the House.

--Editing by Bruce Goldman.

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