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Today’s blog contains the contents of Chapter 8 of my handbook, entitled Don’t Get Sued! A Guide to Help Reduce Your Business’s Exposure to Lawsuits, which deals with assumption of risk, hold-harmless agreements, and general disclaimers, and the chapter reads as follows:
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.