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Ex. DUT-FL-012 Standing duty Primary source read

Chapter 2021-1, Laws of Florida (SB 72), § 1, creating Fla. Stat. § 768.38

Liability protections for COVID-19-related claims

Florida Legislature (SB 72), approved by Governor Ron DeSantis · Florida (State)

The COVID Project

The record

Jurisdiction
Florida
Level
State
Authority
Fla. Const. art. III; creating Fla. Stat. §§ 768.38 and 768.381
Issued
2021-03-29 Mar. 29, 2021
Effective
2021-03-29 ('This act shall take effect upon becoming a law'); § 4: 'This act applies retroactively and prospectively,' except to a civil action against a particular named defendant commenced before that date (read as 2021-03-29)
End
standing (s. 768.38(4): a COVID-19-related claim must be commenced within one year after it accrues, or within one year after Mar. 29, 2021 for claims that accrued earlier) (read as 2021-03-29)
In force
Standing since Mar. 29, 2021 (a statutory duty; in force throughout the six quarters)
Quarters
2020 Q22020 Q32020 Q42021 Q12021 Q22021 Q3
Limitation types
Workplace rulesOperating condition
Addressees
  • business entities (including charitable organizations and not-for-profit corporations), educational institutions, governmental entities and religious institutions (s. 768.38); health care providers under s. 768.381
Character
liability shield condition
Collection
Standing duties: Florida DUT-FL

Operative words

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.... If the court determines that the defendant made such a good faith effort, the defendant is immune from civil liability.

Penalty

None (civil rule of decision): absent the good-faith effort the plaintiff 'may proceed with the action,' and liability then requires 'at least gross negligence proven by clear and convincing evidence' (s. 768.38(3)(c)c); complaint pled with particularity and physician affidavit (s. 768.38(3)(a)-(b))

What it required

A business entity, educational institution, governmental entity or religious institution sued on a COVID-19-related claim is immune only if the court determines, as a matter of law at the threshold, that it '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'; the Legislature thereby fixed compliance with the health standards and guidance in force as the legal standard of care for every accrual date from the beginning of the pandemic.

Retrieval note

The quotation is s. 768.38(3)(c)2. and (3)(c)2.b. Paragraph (3)(c)2.b continues: 'If more than one source or set of standards or guidance was authoritative or controlling at the time the cause of action accrued, the defendant's good faith effort to substantially comply with any one of those sources or sets of standards or guidance confers such immunity from civil liability.' Paragraph (3)(d): 'The burden of proof is upon the plaintiff to demonstrate that the defendant did not make a good faith effort.' Subsection (1) recites the Legislature's finding that 'the COVID-19 outbreak in this state threatens the continued viability of certain business entities' and 'an overpowering public necessity.' Section 2 (s. 768.381) makes 'Substantial compliance with government-issued health standards' the affirmative defenses for health care providers. Approved by the Governor and filed with the Secretary of State Mar. 29, 2021.