Updated: Nov 24, 2020
On August 12, 2020, Tennessee's General Assembly passed the Tennessee Covid-19 Recovery Act. The Act provides "there is no claim for loss, injury, or death arising from Covid-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, injury or death by an act or omission constituting gross negligence or willful misconduct." Furthermore, a claimant must file a verified complaint setting forth specific facts of the bad acts or omissions. And a claimant must obtain a certificate of good faith from a licensed physician that he or she believes the the alleged loss or death was caused by the act or omission of the defendant(s).
So, employers, can you be sued if an employee contracts Covid-19? Of course. You can always be sued by anyone for anything. They may lose. Their case may be dismissed. But you will still be out attorney's fees and time.
What does the Act actually do? First it raises the requisite level of evidence from "more likely than not" to "clear and convincing." Most civil litigation only requires a showing that a bad act more likely than not caused an injury, i.e. 51%. Here, the claimant must put on clear and convincing evidence that the act caused the injury.
Second, the claimant must prove gross negligence or willful misconduct. Gross negligence is generally defined as extreme indifference or reckless disregard for the safety of others. Ordinary negligence is a violation of a duty owed to another - think about accidentally running a red light and causing an accident. Gross negligence would be more like excessively speeding in a school zone at 7:50 a.m.
Third, the Act requires specific facts to be set forth in the complaint that show gross negligence. This suggests something more is required than many of the general allegations contained in a standard complaint.
And lastly, a claimant has to have a physician prepare a written statement that the claimant contracted Covid-19 due to the bad acts or omissions of a defendant. It will be interesting to see how a specific moment of infection can be identified, but I'm sure someone will be willing to do it.
The Act does not prevent you from being sued. It does, however, raise the level of proof required for a claimant to find success.
LEGAL JARGON DISCLAIMER: The foregoing is not legal advice. Even if you construe it that way, it’s probably only worth what you paid for it. I am an attorney but am not yours.
Whether you are a Haven client or not, I’m always available to discuss.