Law that limits liability for Covid-19 claims draws criticism

Gov. Ron DeSantis this week signed into law SB 72, a statute that limits civil liability for damages relating to Covid-19. On its face, the law would appear to be a bulwark against frivolous lawsuits filed against businesses, schools, houses of worship and health care facilities, but St. Petersburg attorney Charles Gallagher III said it’s written in such a sweeping, politically motivated way that it will prevent people with legitimate claims from seeking justice.

“If you are a trial attorney, you obviously don’t like the law,” Gallagher told the Catalyst. “You’re thinking, ‘Wait a second, that’s killing us.’ But there could be scenarios where there might be liability on the part of employers and such.”

But Gallagher said he approves of the spirit, if not necessarily the letter, of the law, in that it aims to raise the burden of proof for people who claim they were infected with Covid-19 at a specific location.

“I like it in some respects,” he said, “but I just wish there’d been some carve-out for scenarios where there’s not just divergence, but clear, patent, gross negligence.”

Charles Gallagher III is an attorney at Gallagher & Associates in St. Petersburg. Photo provided

As an example, Gallagher cited the case of the late Gerardo Gutierrez, who worked in the deli at a Publix in Miami Beach before he became infected with Covid-19 in late March 2020 and then died in April. A civil negligence lawsuit filed by Gutierrez’s estate claims Publix would not allow Gutierrez to wear a mask while on the job. At the time, mask mandates were not in place in most communities across the state.

“At that point,” Gallagher said, “he had co-morbidities and he wants to wear a mask. He wanted to wear a mask in the deli and he was told by his bosses at Publix, ‘No, you can’t do it. It’s going to scare people.’ But I think, even back then, there were some mandates out that it was a good thing to wear a mask if you had co-morbidities. Those kinds of issues are where employers probably had legitimate liability and should be sanctioned for their conduct.”

According to the governor’s announcement of the law’s passage on Monday, the measure provides total immunity for defendants “if a good faith effort was made to comply with health standards and guidance related to Covid-19.”

DeSantis, speaking alongside Chief Financial Officer Jimmy Patronis, Senate President Wilton Simpson and Florida House Speaker Chris Sprowls, said, “Over the course of the past year, our state’s businesses, health care providers and other organizations have been forced to operate in fear of frivolous lawsuits with no merit threatening their livelihoods. Thanks to the hard work of President Simpson, Speaker Sprowls, and quick passage by the House and Senate, that fear ends today with my signing of SB 72, which provides much-needed liability protections against Covid-19 related litigation.”

The governor added, “As we move forward in our state’s economic recovery, this good piece of legislation will provide Floridians with greater peace of mind as they go to work, go to school, and go about their daily lives.”

Gallagher said he expects the law, which he called the most aggressive one of its kind in the nation, to be challenged in the courts. It’s almost certain to inflame partisan tensions, as well, because of its “political flavor” that’s designed to appeal to the Republican Party’s base. DeSantis, he said, “is so pro-right, pro-Republican … he’s a Trump surrogate, basically.”

In a follow-up statement emailed to the Catalyst, Gallagher clarified that the law does allow for some potential, but likely very rare, exceptions for plaintiffs who can meet an “exceedingly high bar” of evidence showing that negligence occurred. A plaintiff, he wrote, “would have to show that the defendant deliberately ignored Covid safety guidelines.” Otherwise, the defendant enjoys total immunity.

“Plaintiffs must obtain an affidavit from a doctor, stating the defendant’s failure to following health and safety guidelines caused the Covid-19 infection that led to a death or injury ‘within a reasonable degree of medical certainty,’” Gallagher wrote. “Maybe nursing homes can be targets but other businesses can exhale.”