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Small Business Owner? You’ve Been Served: Next Steps After Receiving a Complaint. 

January 7, 2021

There are many aspects of business cannot be controlled – not least of which are pandemics and lawsuits. Being served with a lawsuit is serious, and it can also be nerve-racking. Fortunately, knowing what to do and taking a proactive approach will help you get through it. Having an existing relationship with professionals like attorneys will also lessen the burden.

Although there are endless ways to “avoid” being sued, the fact is even when you do everything correctly, some may still bring a claim against you and your business. Be prepared.

1.     Avoid Extreme Reactions of Panic and Indifference   

DO NOT ignore the lawsuit and do not panic. Panic can lead to poor decisions and ignoring the lawsuit is a poor decision in and of itself. Do not react emotionally by contacting whoever is suing your business directly. Allow your lawyer to talk to their lawyer and handle everything on the record. If you are dealing with an employment-related issue where you still have to communicate with the person who is suing your business because they are an employee, you should avoid discussing the lawsuit and make sure someone is always there to witness your interactions.

2.     Read the details of the lawsuit carefully

Pay attention to the important points: who, why, what, when. Who is suing you? What are they suing for and why do they feel the need to do so? When do you have to provide a response (Answer)? It will all be right there in the Complaint and knowing what you are faced with is the first step in getting the best outcome under the circumstances.

3.     Contact a reputable attorney (if you do not already have one, as you should)

If you do not already have a working relationship with a reputable, experienced attorney, now is the time to start one. Even if you do not need their services yet, you can establish a relationship and get valuable insight on how to proceed if you are put in this position. Companies cannot appear in court without an attorney representative so for may, this is not optional.

4.     Notify your insurance company if the suit involves an insurance claim

In some claims, insurance coverage will be implicated. This can be helpful because the insurance company might retain an attorney to defend the suit on your behalf. However, it is still important to consult an independent attorney to make sure that you are protected professionally and personally.

5.     Determine how to move forward

Once you have taken the time to see what you are up against and talk to your lawyer about the best course of action, you will need to use this information to decide how your business is going to move forward with the lawsuit that has been filed. At times, it might be best to attempt to settle the claim without further litigation. In other circumstances, filing a strong defense or counterclaim will be most effective.

Honestly, if you can start with respect and mutual understanding, you may be able to avoid most of the potential lawsuits and other complaints from employees. But, even if a suit does happen, it’s not the end of the world. Use the information in this guide to help you get ready for any legal issues facing your small business.

Stay tuned for tips on What Not To Do When Served With A Lawsuit.

Cheers.

Georgia COVID-19 Pandemic Business Safety Act

July 24, 2020

Recently, the Georgia General Assembly approved the Georgia COVID-19 Pandemic Business Safety Act which provides protections for businesses from liability that may be linked to the transmission, exposure, or potential exposure to COVID-19, except in cases of gross negligence, wanton misconduct, reckless infliction of harm, or intentional infliction of harm. This law applies to all actions that occur prior to July 14, 2021.  The laws effective date is August 7, 2020.

What does this mean for employers?

The Act provides that businesses and healthcare facilities are not liable for the “transmission, infection, exposure, or potential exposure of COVID-19” unless such outcomes occur as a result of gross negligence, wanton misconduct, or reckless or intentional infliction of harm. The Act also includes a presumption of risk for potential claimants.  Put simply, this presumption means that a potential claimant assumes the risk of potential COVID-19 related outcomes and waives all rights to potential civil claims except in instances of gross negligence, wanton misconduct, or reckless and/or intentional infliction of harm.

A business that posts signage explaining its patrons’ assumption of risk under Georgia law establishes a rebuttable presumption against future claims related to COVID-19. This presumption also applies to healthcare facilities. The law enumerates specific requirements related to the signage.  Specifically, a sign must be at least 10-point Arial font and be visibly posted near at least one point entry for the establishment. A receipt or proof of purchase for entry or attendance issued to a claimant (including an electronic or paper ticket or wristband) may include a statement in at least ten-point Arial font warning those entering the premises that:

“Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.”

What does this mean for individuals?

In order for an individual to have a viable COVID-19 liability claim against a business, he or she must prove that the business did not exercise even the slightest diligence against the transmission of COVID-19.

Thus, in cases where a business displays appropriate signage at a point of entry explaining its lack of liability, claims regarding COVID-19 liability are more likely to be dismissed due to the claimant’s presumption of risk upon entry of the premises.  Therefore, unless a patron or employee is able to establish negligence, misconduct, or reckless or intentional infliction of harm, it is unlikely a claimant will prevail.

It should also be noted that the Act provides that failure to post warnings is not admissible evidence to prove a businesses liability in a COVID-19 liability claim.

What does this mean for employees?

Notwithstanding the enactment of this law, the GA Department of Public Health continues to recommend that employers and employees:

  • Use teleworking technologies to the greatest extent possible.

  • Stagger work schedules.

  • Consider canceling non-essential travel.

Additionally, businesses should also:

  • Hold larger meetings virtually, to the extent possible.

  • Arrange the workspace to optimize the distance between employees, ideally at least six feet apart.

  • Urge high-risk employees to stay home.

  • Urge employees to stay home when they are sick and maximize flexibility in sick leave benefits.

  • Follow CDC guidance for community events and groups.

Stay Safe Everyone; We Are In This Together.