HUNTSVILLE, Ala. — Alabama Governor Kay Ivey’s updated health order drew plenty of attention as restaurants, bars, and hair salons were given a green light to begin reopening on Monday.
The governor’s order also said some businesses were reluctant to reopen for fear of liability from lawsuits. So, Ivey ordered a “safe harbor” for businesses and hospitals to create “reasonable protection” from COVID-19 related lawsuits.
Attorneys told WHNT News 19 the changes in COVID-19 related cases compared to other lawsuits in Alabama are significant. The standard of misbehavior to sue over is increased from simple negligence to one of reckless or wanton conduct.
The new rules would apply to businesses and health care providers, including nursing homes, which between residents and employees, have produced more than 16 percent of Alabama’s COVID-19 cases.
“So the burden of proof is much greater — clear and convincing evidence vs. preponderance of the evidence and the plaintiff can only recover for willful, wanton, reckless or intentional acts,” said Huntsville attorney Mark McDaniel.
Alabama State Senator Arthur Orr sponsored a Senate bill addressing the same issues last week before the governor’s order. He said the intent was to raise the standard to willful and wanton –knowingly, recklessly disregarding worker’s health.
“My mind could be the business doesn’t offer masks to employees, the business doesn’t have hand sanitizing stations, the business doesn’t require social distancing,” Orr said last week.
But McDaniel said the evidence standard to prove that misconduct is also higher. He offered the following advice to workers concerned about their health:
“I would call the OSHA, or I’d call the Alabama Department of Health. That’s what I would do. As far as recovering civilly in a lawsuit that bar is way up there now. Again, it’s not simple negligence anymore, the bar has really been raised,” McDaniel said.
Orr’s bill was approved in committee but not voted on by the full Senate.