David Berggren stands on the ground where his fifth furniture store will be built in Clarksville, Tenn.
David Berggren stands at the site of his new Furniture Connection store in Clarksville, Tenn., in 2019. He expects the store to open later this year.

Tennessee looks at liability protection

David Berggren has implemented strong safety measures in his Clarksville, Tenn., furniture stores.

Every employee reporting for work must pass a wellness checklist and temperature screening. Everyone, including customers, must wear face coverings. Everything is cleaned every two hours and overnight.

Yet, the owner of Home Furnishings Association member Furniture Connection, as well as two Ashley HomeStores and a Furnish, still has to worry about potential legal actions if anyone claims to have been infected with COVID-19 in one of his businesses.

That’s why liability protection is so important to him.

[HFA member Berggren breaks ground on fifth store]

The HFA is pushing for liability protection at the federal level as proposed recently in the Senate HEALS Act. But prospects are uncertain.

Not waiting for Congress to act

So, lawmakers in Tennessee aren’t waiting for Congress to deliver liability protection to businesses in their state. In a special session beginning today, they will consider a bill that would block unwarranted lawsuits.

The bill as drafted declares “there is no cause of action against any person or entity for loss, damages, injury or death arising from COVID-19, unless the claimant proves by clear and convincing evidence that the loss, damage, injury or death was caused by an act of omission constituting gross negligence or willful misconduct.”

Any “entity” refers to businesses, as well as medical facilities, colleges or other organizations where people congregate and may become exposed to the virus. The risk of liability could make it too costly for any entity to operate during a pandemic, which is why reasonable protection is needed. The bill would not, however, create a shield of immunity.

Claims must be supported by ‘specific facts’

“Businesses found to be grossly negligent by taking no measures to mitigate COVID-19 will not be protected by the bill,” the Tennessee Retail Association said in explaining it.

If someone – a customer or even an employee – did file a complaint, he or she would be required to plead “specific facts” supporting the claim, according to the draft legislation. Furthermore, the claimant would be required to present a written statement from a physician testifying to a good-faith belief that COVID-related harm resulted from “an act or omission of the defendant or defendants.”

Berggren has spoken to several legislators to urge their support for liability protection. He thinks there’s a good chance Tennessee will act. He’d also like to see action on the federal level. Otherwise, plaintiffs could bring cases into federal courts. The HEALS Act liability protection would pre-empt state laws.

The Hunton Andrews Kurth LLP law firm has tracked some 4,000 COVID-related legal complaints since the crisis began. The leading states are California, New York and Florida. In many cases, plaintiffs’ attorneys may be looking for a fast settlement of a few thousand dollars. If they don’t settle complaints, businesses can spend a lot of money defending themselves from claims that “negligence” led to someone’s infection. Unfortunately, there is no perfect defense against transmission of a microscopic virus. Nor is there certainty in trying to determine where an infection occurred. That is why employers that follow federal, state and local safety guidelines in good faith should not be exposed to legal damages.

Ask state leaders for liability protection

A handful of states have moved ahead with their own liability protection laws. In Oklahoma, for example, a person conducting business in the state can’t be held liable in a civil action claiming an injury from exposure to COVID-19 as long as that person was in compliance with federal or state regulations, executive orders or guidance, its law says. Retailers in other states should ask their state leaders for the same protection.

Furniture stores are serving their customers with essential products and operating safely. They aren’t part of the problem and should not have to worry about meritless legal claims. HFA members in Tennessee should contact their legislators today and ask them to enact liability protection. Berggren has. Legislators can be found here.

If you are not a member of the Home Furnishings Association, consider joining and adding your voice to ours as we engage with our government for actions that will help your business succeed.

 

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