New legal protection from COVID lawsuit for condos and HOA’s
On March 29th, Florida Governor Desantis approved and signed Senate Bill No. 72 to protect Business Entities from COVID lawsuits in Florida. The new law became effective on that date.
As a basis for the new laws the Bill says that: “The Legislature finds that the COVID-19 outbreak in this state threatens the continued viability of certain business entities, educational, institutes, governmental entities, and religious institutions that contribute to the overall well-being of this state. The threat of unknown and potentially unbounded liability to such businesses, entities, and institutions, in the wake of a pandemic that has already left many of these businesses, entities, and institutions vulnerable, has created an overpowering public necessity to provide an immediate and remedial legislative solution. Therefore, the Legislature intends for certain business entities, educational institutions, governmental entities, and religious institutions to enjoy heightened legal protections against liability as a result of the COVIC-19 pandemic. The Legislature also finds that there are no alternative means to meet this public necessity, especially in light of the sudden, unprecedented nature of the COCID-19 pandemic. The Legislature finds the public interest as a whole is best served by providing relief to these businesses, entities, and institutions so that they may remain viable and continue to contribute to the state.”
The Bill first states that “Business entity” includes a corporation not for profit as defined in s. 617.01401. Not for profit business entities include Condominium and Homeowners’ Associations.
The new law then says that in order for a court not to dismiss a COVID-19 legal complaint, that the “plaintiff must submit an affidavit signed by a physician actively licensed in this state which attests to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19 related damages, injury, or death occurred as a result of defendant’s acts or omissions.”
How a physician can make a determination within a reasonable degree of medical certainty that a person got COVID on Condominium or Homeowners’ Association property as a result of the acts or omissions of those running the Association sounds like a very heavy lift.
Even if this lift can arguably be made, then the court must determine whether the “defendant made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.”
As far as I can tell, most all Condominium and Homeowners’ Associations enacted emergency rules requiring face masks and social distancing on common elements or common area property.
So if the court decides the Association made such a good faith effort, “the defendant (Association) is immune from civil liability.”
If the court decides the Association did not make such a good faith effort, “the plaintiff may proceed with the action. However, absent at least gross negligence proven by clear and convincing evidence, the defendant is not liable for any act or omission relating to a COVID-19-related claim.” The burden of proof is upon the plaintiff to demonstrate that the defendant did not make a good faith effort and the claim must be brought within 1 year.
Proving gross negligence by clear and convincing evidence is also very hard to do. Gross negligence has been defined at “Wordnik.com” as “negligence evidencing a total or near total disregard for the rights and welfare of others and for the consequences of an act.”
You maybe could reach this burden of proof if an Association advertised and held a “lets spread COVID” party and specifically invited people known to be actively infected with COVID at the time. We are unaware of anything like this happening at Condominium or Homeowners’ Associations in Southwest Florida.
Although there may be an unusual fact pattern out there wherein an Association in Florida actively engaged in promoting the spreading COVID-19, I think it can be safe to say under this new law that it will be a rare occasion in Florida wherein a Condominium or Homeowners’ Association will ever be found guilty in a COVID-19 lawsuit if attempted or brought.