Earlier this week, Louisiana Governor John Bel Edwards signed into law a number of bills that enacts liability limitations for businesses that offered needed services to the public and may face lawsuits brought by both customers and employees related to COVID-19 exposure. While federal legislation geared towards providing some liability protections for businesses is being discussed, Louisiana joins several other states that have stepped into the void and enacted legislation that grants liability protections for businesses from these types of claims.
The first measure, Act 303, Senate Bill No. 491, amends and enacts La. Rev. Stat. §§ 29:735.3.1 and 29:735.3.2 to provide for limited liability and lawsuit protection to people and businesses who donate or volunteer any disaster relief, recovery services, or products, such as hand sanitizer and protective clothing. Such persons and businesses can only be liable for injury or death to persons and property that results from “gross negligence or willful misconduct.”
This first measure also reenacts La. Rev. Stat. § 29:735.3.2 to provide for limited liability and lawsuit protection to people and businesses that render and/or sell recovery services or products “outside of the typical course and scope of their operations.” Once again, such persons and businesses can only be liable for injury or death to persons and property that results from “gross negligence or willful misconduct.”
The second measure, Act 305, Senate Bill No. 508, enacts La. Rev. Stat. § 29:773 and extends limited liability and lawsuit protection to restaurant owners and employees for claims arising out of injury or death due to COVID-19 infection transmitted through the preparation and serving of food and beverages during the emergency, which includes dine-in, takeout, drive-through, and delivery. Restaurants cannot be held liable as long as they are deemed “in substantial compliance” with state, federal, and local regulations that govern the business operations during the COVID-19 emergency. If the restaurant is governed by more than one set of procedures or guidelines, then the business must only “substantially comply” with one of them. The statute broadly defines “Restaurant” as “an eating establishment which gives or offers for retail sale prepared food to the public within its premises.” The lone exception to this limited liability for restaurant operations is when the injury or death results from “gross negligence or willful and wanton misconduct” by the restaurant’s owners, employees, contractors, or agents.
The third measure, Act 336, House Bill No. 826, enacts two new statutes that extend limited liability and lawsuit protections to a broad range of businesses and business activity. Newly enacted La. Rev. Stat. § 9:2800.25 provides that persons, businesses, and state and local governments are not liable for “any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 in the course of” business operations unless (1) the business “failed to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency which governs the business” and (2) the injury or death resulted from the business’s “gross negligence or wanton or reckless misconduct.” If the business is governed by more than one set of procedures or guidelines, then the business must only “substantially comply” with one of them.
Another subsection of § 9:2800.25 extends protections to business event strategists and various kinds of event planners (e.g., conventions, trade shows, conventions, exhibitions, sporting events, etc.). These strategists and planners cannot be held liable for injury or death related to actual or alleged COVID-19 exposure “unless such damages were caused by “gross negligence or willful or wanton misconduct.”
Employees covered by workers compensation who allege they contracted COVID-19 in the workplace is also barred from suing unless exposure to COVID-19 was “intentional” according to the law under the new law. In Louisiana, this intentional threshold is a very difficult hurdle for an injured employee to meet.
Finally, the third measure enacts La. Rev. Stat. § 29:773 that provides limited liability and lawsuit protections to persons and businesses that design, manufacture, label, or distribute personal protective equipment in response to the COVID-19 public health emergency. Once again, these protections do not apply when the damages were caused by “gross negligence or willful or wanton misconduct.”
This same statute also provides that persons and businesses that use, employ, dispense, or administer personal protective equipment cannot be held liable for civil damages resulting from or related to that personal protective equipment. The limited liability and lawsuit protections do not apply if (1) the person “failed to substantially comply with the applicable procedures established by the federal, state or local agency which govern such personal protective equipment” and (2) the injury or death resulted from the business’ “gross negligence or wanton or reckless misconduct.” If the business is governed by more than one set of procedures or guidelines, then the business must only “substantially comply” with one of them.
The primary exception to the protections of these new laws is when the damages are caused by the actor’s “gross negligence or willful and wanton or reckless misconduct.” While the new laws use inconsistent wording and fail to offer any definition or guidance on what these phrases mean, Louisiana appellate courts have long defined this concept of “gross negligence or willful and wanton or reckless misconduct” as being distinctly separate and different from ordinary negligence. The terms have been described as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” For the most part, these fluid, vague descriptions essentially mean no hard and fast rules exist, and our courts will decide what is “gross negligence or wanton or reckless misconduct” based on the specific facts of each case.
While the business community should view these laws as a welcome relief, the protections they afford do not create blanket immunity from being sued in court. It is important for businesses to make sure to document the actions being taken to keep both employees and customers safe. Businesses should also carefully and comprehensively document the source of the recommendations they are following in implementing these procedures, i.e. state municipal agencies, local Mayors, the Governor’s office, Centers for Disease Control and Prevention, and Occupational Safety and Health Administration, etc.
The protections associated with each of the new laws are retroactive to March 11, 2020, when Governor Edwards first declared a state of emergency related to COVID-19 in Louisiana.
Links to these new laws can be found here: