Article
Courtesy of LAW 360
By
Nathan Cole
Published January 27, 2021
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.
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