Effective immediately under the first new Florida law enacted this legislative session (SB 72), community associations throughout the state should receive some protection from coronavirus lawsuits if they attempted to follow governmental guidelines to prevent the spread of COVID-19. Publicized as the most aggressive COVID-19 liability law in the United States, this legislation enacted March 29 imposes tougher legal requirements on individuals wanting to sue Florida business entities and various other organizations over COVID-19-related claims. The plain language of the law defines “business entities” to include corporations not-for-profit. As such, this indicates the legislation’s new-found protection extends to homeowners’ associations organized not-for-profit in accordance with Section 720.302(1) of the Florida Statutes as well as condominium associations organized not-for-profit in accordance with Section 718.111(1)(a) of the Florida Statutes.
By implementing a “gross negligence” standard, which is a higher bar for a plaintiff to prove and has been defined by Florida courts as the type of conduct that a “reasonably prudent person knows will probably and most likely result in injury to another,” the law should make it more difficult for a plaintiff to prevail in COVID-19-related lawsuit against a community association. And in fact, by requiring the plaintiff to obtain a doctor’s affidavit that states with reasonable medical certainty that the association’s failure to follow guidelines caused the COVID-19 injury or death and include that affidavit when the lawsuit is filed; and (ii) requiring the plaintiff’s complaint to be plead with particularity, the law implements preliminary requirements that make it more difficult to even file a viable case.