Under the doctrine of assumption of risk, a plaintiff may be precluded from a recovery (or the recovery may be diminished) if he or she knew of a potential risk, then voluntarily assumed it.  The assumption may be expressed or implied.  An example of a situation where someone voluntarily assumes an implied risk is when a fan is struck by a foul ball at a baseball game.  The average person knows that is a possibility.

An example of an express assumption of risk, is if you have located a hazardous situation in your store, such as a spill, and you have put up signs warning of the danger.  If a person walks in that area despite the warnings, it can be argued that they assumed the risk and may be precluded from recovering on any injury claim, or recover a reduced amount.

If your business offers rides (such as at a carnival) or some other potentially risky endeavor, it would be prudent to obtain a signature on a hold-harmless agreement, which expressly confirms that the patron assumes the risk involved and agrees to not pursue a negligence claim.  Such express agreements are generally upheld by courts.

Finally, general disclaimers such as signs posted or preprinted on tickets are often not helpful in limiting liability, but may dissuade would be claimants from pursuing the matter in the first place, i.e., before they speak to an attorney.*

*See BAR/BRI Multistate Bar Review Materials, 1991, Torts, page 48.

Related Blogs

• Related Blogs on Chapter 8: Assumption of Risk, Hold-Harmless Agreements, and General Disclaimers

Just a word or two on insurance coverage.  It’s very important that your business have coverage that protects itself.  By protect, I really mean to defend and indemnify.  Defense of your business by your insurer is not optional.  If you have coverage for the type of loss which occurs, the carrier has a duty to defend their insured.  Defense means to handle the claim for you from start to finish.  If the carrier deems the claim to have merit and value, the claim may be settled by an insurance adjuster prior to the filing of a lawsuit by the plaintiff.  If a lawsuit is filed, the insurance company will be responsible for providing an attorney to file an answer to the plaintiff’s complaint, and handle all the litigation related matters through final resolution of the case.  The cost for a business to pay for it’s legal defense without insurance coverage would likely put the vast majority of small businesses out of business.  Therefore, be sure to have appropriate coverage.  To keep the cost down, consider a higher deductible (but one you can afford if the need arises).

You may also wish to consider purchasing medical payment coverage (med-pay).  Such coverage will pay the medical expenses of someone injured on your property, usually up to $1,000.00.  The coverage does not typically extend to employees, as in theory they have worker’s compensation coverage available.  The cost of such coverage is typically fairly nominal and it often placates claimants just enough to prevent them from hiring an attorney and pursuing the matter further.  Often, if the claimants get their medical expenses paid by the establishment that they feel was responsible for their injuries, they feel as if justice was served.

Finally, look into buying an umbrella policy.  These types of policies protect the insured from claims of negligence, as well as other claims, usually up to $1,000,000.00, which is likely to exceed other coverage that you have.  The cost of this type of policy is usually only a few hundred dollars annually.  Just be sure the coverage kicks in for claims against your business.  However, even if it doesn’t, you should consider the coverage, as it protects you personally in case a lawsuit against your business pierces the corporate veil.

When an employee is injured while in the scope of employment, that employee may file a worker’s compensation claim with your business.  This is typically mandatory insurance coverage that you must offer your employees.  Worker’s compensation benefits only provide payment for what the carrier deems to be reasonable and necessary medical treatment and reimbursement for lost wages.  There is no pain and suffering compensation available.

In general, the legislature and judiciary do not like the idea of employees suing their employers, or fellow employees, for their injuries because such litigation may have an effect on the overall employment picture.  In theory at least, the worker is less likely to pursue a claim if no payment other than medical bills and lost wages is available, and not compensating for pain and suffering saves the employer considerably in terms of premiums for the mandatory coverage.

Related Blogs

• Related Blogs on Chapter 6: Worker’s Compensation

I cannot stress enough how important it is for you to inspect the premises of your business; not just to check off a report, but I mean inspect with a very critical eye.  While looking around your business, keep in mind that almost anything can be a hazard.  Some examples of miscellaneous claims that I have had experience with should help illustrate my point.

When you look around your store, inside or outside, how is the lighting?  Are you able to see the display cases?  Is it reasonably foreseeable that a business invitee might bump into it?  Whether the premises are properly lit is subjective.  But there are things that you can do to help protect yourself.  Make sure the highest wattage bulbs are used and that the light fixtures themselves are spaced close together.  If someone falls because they trip over something they didn’t see, rest assured that an experienced personal injury attorney will get a lighting expert out to your store pronto to check for proper wattage and the location of lights.

Another claim that I have handled which pertains to a lot of businesses is injury due to a puncture by those inventory control devices that you usually see attached to clothing.  When they are removed by the clerk ringing up the sale, be certain that there are solid procedures in place for what should be done with that sharp pin which is left uncapped.  Think about it, that pin is a claim waiting to happen.  If the patron is injured, there’s a negligence claim.  If an employee is injured is injured, there’s a worker’s compensation claim (see Chapter 6).

Related Blogs

• Related Blogs on Chapter 5: Miscellaneous Tort Claims

There are lots of types of businesses which need to offer their employees use of company owned vehicles.  Often, employees use these vehicles while outside the scope of employment.  Regardless of whether or not the employee is working for you, or is on a personal errand, typically, most contracts of insurance, as will likely cover your work vehicles, provide that your business’s automobile policy is primary.  This means that your coverage is first in line to pay a third party’s claim if your employee negligently injures someone else or causes property damage while driving your company’s vehicle.  With this in mind, in order to attempt to reduce your premiums, I would urge you to speak with your agent about making the coverage which is available on your business vehicle, secondary coverage in situations where your client is not acting within the scope of employment.  Such coverage should offer insulation for your business, and help keep your rates in check.

Also, consider waiving any available medical payment (med-pay) benefits, sometimes referred to as personal injury protection (pip) coverage.  Medical expenses, and sometimes wage loss (under pip only) paid under such claims are secondary to worker’s compensation benefits.  So waiving the coverage on a work vehicle may make sense and reduce your premiums.

Related Blogs

• Related Blogs on Chapter 4: Company Vehicles

If one of your employee’s injures one of your invitees, is the business liable?  The answer is sometimes.  In general, if your employee intentionally injures an invitee then, unless there was reason to know that the employee would act that way (history that you, the employer, were aware of or should have been aware of), the store probably is not liable for the employee’s intentional actions.  Beyond that, the store’s insurance coverage probably will not cover the loss.

Whether you actually know of an employee’s violent tendencies is the easy part, but in what cases should you have been aware of the employee’s violent propensities?  Watch out for obvious red flags, such as a bad temper that the employee flashes in front of you and others.  And if that temper combines with violence, and there are witnesses, your business may be on the hook if the employee injures and invitee.

An employee handbook that is provided to every employee may be a good idea.  The handbook should cover many subjects, including:  appropriate dress for the workplace, how to interact with fellow-employees (including supervisors and subordinates) and customers, what type of behavior is appropriate in the workplace, vacation time, sick leave and other topics which may be unique to your business.  Be sure to obtain a signature from the employee confirming that they have received  the handbook and will read it and obey the rules.

The employee handbook is different from a contract of employment, which I would urge that you not provide.  A contract of employment, while it may cement your agreement with your employees as far as pay and benefits go, it will also no doubt cover termination.  In most cases, such agreements only provide unnecessary restrictions on the employer as to when and how an employee may be fired.  Typically, absent such an agreement, an employee is considered an “employee at will” and may be terminated for almost any reason.  Naturally, most jurisdictions have laws in place that ensure that the reasons for the termination are not based on race, religion, sexual orientation, etc.

What if your employee negligently injures one of your customers?  In general, your business is liable under the doctrine of Respondeat Superior, which is a fancy way of saying that an employer is liable for the negligent actions of his or her employee.  Appropriate insurance coverage should cover these types of claims.

Related Blogs

• Related Blogs on Chapter 3: Employee Conduct

You may have or plan on opening the type of business that requires security, like a jewelry store.  Or, you may simply feel like your business needs security to make would-be criminals think twice before acting.  Or, maybe there is a disgruntled ex-employee who you believe poses a threat; in which case, not hiring security could create liability.

Whatever the reason for having security guards in place, understand that having such employees creates additional liability exposure.  Keep in mind, with limited exception (shopkeeper’s privilege – where it applies, defense of others, etc.) private security guards have no right to touch anyone.  Therefore, if your needs require more than a show of force, you may want to consider hiring off duty police officers to handle security.  Police officers can make arrests and carry weapons.  A police officer will also typically wear his or her uniform when handling off duty work, and may be able to keep their police vehicle in the lot outside your business.  You may also be able to piggy back onto the municipality’s liability defense if the officer is included in a lawsuit against your business.  By the way, typically the cost of hiring an off duty officer is comparable to hiring a rent-a-cop.

On the other hand, if you do business with private company, be sure to have a written agreement in place in which the company agrees that they are responsible for any alleged misconduct, of any type, by their guards.  You may wish to hire an attorney to prepare such a document, or to review one provided by the security company.

Don’t Get Sued by Roger Gelb is licensed under a Creative Commons Attribution-No Derivative Works 3.0 United States License.
Based on a work at www.gelbandgelb.com.

The driver of a tanker truck that flipped over and caught fire on the Capital Beltway has been charged with reckless driving.

The accident shut down the Inner Loop at the height of Wednesday morning’s commute.

George Dawson, 29, of Baltimore, Maryland, veered off the Inner Loop near Van Dorn Street and hit a wrecker that was actually helping another broken down tractor trailer, according to Virginia State Police. Dawson’s truck then overturned just before 7 a.m.

A lack of sleep is believed to have contributed to the accident. Dawson, who was hauling dry cement in a truck registered to North American Bolt Transfer Co., had been on the road for about two hours.

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WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of Product: Homelite, Husky and Black Max Brand Generators

Units: About 51,750

Distributor: Homelite Consumer Products Inc., of Anderson, S.C.

Hazard: The fuel gauge can leak excessive amounts of gasoline, posing a fire hazard to consumers.

Incidents/Injuries: None reported.

Description: This recall involves Homelite and Husky brand generators sold exclusively at Home Depot stores and Black Max brand generators sold exclusively at Sam’s Club stores. Affected generators include Homelite models HG3500, HG3510, HG5700 and HG5700R, Husky models HU3650, HUCA5700 and HUCA7000 and Black Max models BM10700A, BM10700B, BM10711A, BM10700DG, BM10700R, BM10700BR & BM10722G. Generators included in this recall have manufacturing date codes between BML306-BMM151, CHL122-CHM151 and CRL153-CRM059. The model number and manufacturing date code are included on the data label located on the top or side of the generator engine. Products with a green “dot” on the outside of the package or a “silver dot” on the fuel gauge face are not included in the recall.

Sold exclusively at: Home Depot and Sam’s Club stores nationwide from July 2008 through May 2009 for between $480 and $1,600.

Manufactured in: China

Remedy: Consumers should immediately stop using their generator and contact Homelite Consumer Products Inc. (Homelite and Husky brands only) or Black Max (Black Max brands only) for a free repair kit.

Consumer Contact: For additional information regarding Homelite or Husky brand generators, contact Homelite Consumer Products, Inc. at (800) 242-4672 between 8 a.m. and 5 p.m. ET Monday through Friday, or visit www.homelite.com. For additional information regarding Black Max brand generators, contact Black Max at (800) 726-5760 between 8 a.m. and 5 p.m. ET Monday through Friday or visiting www.blackmaxtools.com

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The death Sunday night was the second fatal accident on the system in less than two months. Nine people died and 80 hurt June 22 when a moving train rammed a stationary one.

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