Governor Abbott has signed the new legislation that will put a stop to most pending and future lawsuits asserting damages related to COVID-19 exposure. In doing so, it accomplished what the U.S. Congress was unable to do earlier this year. The protections afforded by this new law will greatly assist businesses in their re-opening plans.
The legislation provides immunity “for injury or death caused by exposing an individual” to COVID-19 unless the claimant can show the company either:
- Knowingly failed to warn the claimant of or remediate a condition that the company knew was likely to result in the exposure of an individual to COVID-19, provided that the company:
(a) had control over the condition;
(b) knew that the claimant was more likely than not to come into contact with the condition; and
(c) had a reasonable opportunity and ability to remediate the condition or warn the claimant of the condition.
- Knowingly failed to implement or comply with the applicable government-promulgated standards, guidance or protocols intended to lower the likelihood of exposure to COVID-19, provided that the company:
(a) had reasonable opportunity and ability to implement or comply with the standards, guidance or protocols; and
(b) refused to implement or comply with or acted with flagrant disregard of the standards, guidance or protocols.
In addition, the claimant must produce reliable scientific evidence showing the company’s failure was the “cause” of the individual contracting the virus. In other words, the claimant will be required to present reliable evidence tracing that they actually contracted the virus at the place of business and not somewhere else. The bill mandates that the claimant must file an expert report within 120 days after the defendant files its answer from a qualified expert medical doctor that sets forth the factual and scientific basis for the claim. If the expert report is not filed timely, then the court must dismiss the lawsuit upon request and award the defendant its attorney’s fees and costs.
The burdens this new law imposes on a claimant i.e. a gross negligence liability standard and early case expert report, will certainly have people thinking twice before filing lawsuits against businesses for alleged COVID-19 exposure. Which, of course, is the Legislature’s intent.
The new law is effective immediately and will be applied retroactively to any suit filed on or after March 13, 2020, which means it would apply to the several hundred pending COVID-19 related lawsuits.
The take-away for business owners in Texas who have or are trying to reopen is to follow the applicable COVID-19 regulations, guidance and protocols published by recognized health organizations like the Centers for Disease Control (CDC) as well as the Texas Department of State Health Services.