We have never experienced anything like the COVID-19 pandemic. Before January 1, 2020, few people had heard of COVID-19. By March 15, 2020, business and schools were shutting down because of COVID-19. Government was unprepared for COVID-19, and the law was unprepared for COVID-19. The seriousness of COVID-19 was undisputed. For that reason, it is inevitable that lawsuits will be filed asserting that the defendant was negligent in failing to take steps necessary to prevent the plaintiff’s exposure to COVID-19 and, as a result, the plaintiff was injured.
To address this inevitability, the Tennessee General Assembly convened a Special Session in August 2020, and adopted its COVID-19 law. Unlike some states, Tennessee’s COVID-19 law does not grant immunity from lawsuits for COVID related claims. Instead, the General Assembly elected to add certain procedural requirements to COVID-19 lawsuits. For governmental entities, these changes are included in an amendment to Tennessee’s existing Governmental Tort Liability Act.
Generally, Tennessee governmental entities are immune from lawsuits by virtue of the doctrine of “sovereign immunity;” an ancient canon that prohibited lawsuits against the king. Tennessee courts kept that doctrine after Tennessee became a state. In the intervening years, the Tennessee General Assembly has adopted laws that modify sovereign immunity to allow lawsuits against the State and against local government entities.
One significant exception is the Governmental Tort Liability Act. This law allows governmental entities to be sued. The amount of damages that the plaintiff can recover is limited. Further, GTLA lawsuits must be filed in Circuit Court in the County, and there is no jury trial. Finally, the GTLA limits a governmental entity’s liability to certain specific acts. Under the GTLA, a governmental entity is not liable for intentional claims such as false arrest and defamation.
Here are the rules (effective as of August 2020) for COVID-19 claims:
1. Can governmental entities be sued for damages caused by COVID-19?
Answer: The new law DOES NOT grant governmental entities immunity from lawsuits due to Covid-19. It does limit the circumstances when a governmental entity can be sued.
2. When can a governmental entity be sued because of COVID-19?
Answer: (a) Eligible employees may file claims pursuant to the Worker’s Compensation Act for COVID related exposure.
(b) A governmental entity can be sued for damages caused by COVID-19 if a court determines the actions or omissions of the governmental entity or its employees constituted gross negligence.
(c) A government employee can be sued and is personally liable for damages caused by COVID-19 if the actions or omissions of the employee were willful, malicious, criminal or performed for personal financial gain.
4. What does Willful or Malicious mean?
Answer: Legally, “malicious acts” are acts or omissions “motivated by ill will, hatred, or personal spite.” Willful acts or omissions are taken with the conscious objective or desire to engage in the conduct or cause the damage. A person acts intentionally when he or she aims a handgun at another person and pulls the trigger. A 911 dispatcher who does not dispatch a fire truck to a house fire because the dispatcher dislikes the family who owns the property acts maliciously.
5. What are the additional procedural hurdles to a COVID-19 lawsuit?
Answer: The Tennessee COVID-19 Law requires a person suing:
(a) Sign the complaint under oath;
(b) Allege specific facts in the complaint that, if true, prove the claim; and
(c) Obtain a written opinion from a physician before filing the lawsuit that the physician believes that the plaintiff’s injury or death resulted from the act or omission of the defendant.
The law also changes the standard of proof from “preponderance of the evidence” to “clear and convincing evidence.”
For governmental entities, the issues are most likely to include:
1. Claims for failure to administer COVID-19 tests;
2. Claims for failure to provide proper medical treatment upon suspicion of COVID-19;
3. Claims for failing to segregate persons under control (prisoners, children at school) from persons known or suspected of having COVID-19.
4. Claims for failure to enforce social distancing and wearing of protective clothing, including face masks.
5. Claims that the governmental employee failed to take the risk of COVID-19 seriously and therefore acted with indifference.
6. Once a vaccine is available, claims regarding vaccinations and failure to enforce a vaccination requirement.
As with other legal claims, the best defenses to COVID-19 claims are policies to comply with, and documentation of compliance with, federal, state and local protocols. Documentation of compliance defeats the ability to assert that the bad actor acted with deliberate indifference, willfully or maliciously. As scientists learn more about COVID-19 and its spread, policies and practices may need to be modified to reflect the “best” practices.