Springfield Business Journal_2021-02-22

16 · SBJ.NET FEB. 22-28, 2021 LAW Research Branding Design & Copy Video & Photography Website & Digital Development Traditional & Digital Media Through times both ordinary and extraordinary, ADsmith’s dexterity and dedication make us shine. ADsmith.biz A n g e l a S m i t h l i t h B u i l d i n g B r a n d s that build memories. i l i . From exquisite videos to elegant artwork, stunning websites to effective traditional and digital campaigns, ADsmith has proudly supported Maxon Fine Jewelry for nearly fifteen years. “ ” As of mid-February, more than 1,600 lawsuits nationwide, including two dozen in Missouri, have been filed against em- ployers due to alleged labor and employ- ment violations related to the coronavirus, according to data compiled by San Francisco-based law firm Littler Mendelson PC. Greggory Groves, an employ- ment attorney with Lowther Johnson Attorneys at Law LLC, said the type of legal action would vary based on whether an employee or customer is ex- posed. “An employee who gets CO- VID would have to proceed un- der workers’ compensation – it’s just like getting hurt on the job,” Groves said. “On the other hand, if you walk into a Walmart and catch COVID, then the standard in most cases is just like a slip and fall.” Both Groves and Satterwhite were un- aware of any cases relating to COVID-19 exposure in the Springfield area. State-level protection A bill under consideration in the Mis- souri Senate would add a level of protec- tion for businesses potentially facing a COVID-19 exposure lawsuit. Senate Bill 51 would establish protections related to COVID-19 in three areas: exposure, medical liability and products liability. The bill would pro- tect individuals or entities engaged in business from being held liable in any exposure action unless the plaintiff can prove the defendant engaged in “reckless or willful misconduct that caused an ac- tual exposure to COVID” or the exposure caused personal injury to the plaintiff. It also would protect health care providers from COVID-19 medical liability action without gross negligence, and product manufacturers or sellers from liability without gross negligence, as long as they did not make or sell the product before the pandemic began. “We had to have food stores open, businesses had to sur- vive and do what they could do,” said SB 51 co-sponsor Sen. Bill White, R-Joplin. “This bill gives them protection unless they did something reckless or intentional.” White originally sponsored similarly written SB 42, but the bill was combined with legisla- tion proposed by Sen. Tony Lu- etkemeyer, R-Parkville. SB 51 changes the standard of what qualifies as fault for the business in question, requiring plain- tiffs to prove gross negligence or reckless- ness, instead of basic negligence. Groves compared the levels of negli- gence to a slip-and-fall lawsuit. If a cus- tomer slips and falls on a wet floor be- cause it was not marked, but the incident is a one-time issue, that is negligence. If the store has had a continuously wet floor due to an unfixed leak that hasn’t been ad- dressed, that is gross negligence, he said. In the case of COVID-19, if a business does not require masks or enforce so- cial distancing, and has poor dis- infecting procedures, there may be a case for gross negligence. Hard to prove But it isn’t quite that simple. “Frankly, these lawsuits are going to be very tough to prove,” Groves said. “You still have to prove the negligence caused your damage. You don’t have to prove beyond a reason- able doubt, you just have to prove more likely than not. But in this day and time, you can catch COVID in any number of places and trying to prove that it’s more likely than not you caught it at one particular place versus somewhere else is tough.” Satterwhite said he is unsure if being able to simply prove exposure to COVID-19 would be enough or if plaintiffs would need to prove they actually contracted the disease because of the negligence. Both Springfield attorneys doubt the necessity of the state legislative protections based on the level of COVID-19 lawsuits filed so far. White said the bill has been proposed in order to protect Mis- souri businesses from lawsuits without gross negligence, in the hopes it would allow and encourage them to remain open during this pandemic and any future issues. “The next time we have something, we want these people to do the same thing again. We want them to step up, keep their stores open, go into work,” White said. “If we don’t take care of them, why are they going to do it next time? They put them- selves at risk.” In his Jan. 27 State of the State address, Gov. Mike Parson said he hoped the COV- ID-19 liability protection bill would be the first piece of legislation on his desk. The bill also is a top pri- ority for the state and Spring- field chambers of commerce. At least 14 states including Kansas, Arkansas and Iowa have enacted liability protec- tions for many businesses from COVID-19 lawsuits, according to the National Conference of State Legislatures. Many other states are considering similar legislation in 2021, but no fed- eral legislation has been passed. As of press time, SB 51 was on the Missouri Senate’s informal calen- dar, awaiting a third reading and vote to send it to the House of Representatives. White said because the bill has an emer- gency clause – allowing it to go into effect right after passage – it needs a super ma- jority vote in the Senate. Defense: SB 51 needs super majority to pass Continued from page 9 Greggory Groves : COVID-19 exposure will be difficult to prove. Paul Satterwhite : The pandemic is consuming time in employment law practice. 1,600 Lawsuits reportedly filed nationwide relating to COVID-19