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. This chapter covers assumption of risk, hold-harmless agreements, and general disclaimers. It reads as follows:
What Assumption of Risk Means
Under the doctrine of assumption of risk, a court may bar a plaintiff from recovery. The court may also reduce that recovery. This happens when the plaintiff knew of a risk and then voluntarily accepted it. A plaintiff may assume a risk expressly or by implication. For example, a fan at a baseball game implicitly assumes the risk of a foul ball. The average person knows that possibility exists.
An express example arises in your store. Suppose you locate a hazard, such as a spill, and you post signs warning of the danger. A person then walks through that area despite the warnings. In that case, you can argue that the person assumed the risk and therefore cannot recover.
Use Hold-Harmless Agreements for Risky Activities
Does your business offer rides, such as a carnival attraction, or any other risky activity? If so, you should obtain a signature on a hold-harmless agreement. Such an agreement expressly confirms that the patron assumes the risk. It also confirms that the patron agrees not to pursue a negligence claim. Courts generally uphold these express agreements, so they offer real protection. Business owners should also understand their broader premises liability duties.
The Limits of General Disclaimers
Finally, general disclaimers rarely limit liability on their own. These include posted signs or language preprinted on tickets. However, they may still dissuade would-be claimants from pursuing the matter before they ever speak to an attorney.*
*See BAR/BRI Multistate Bar Review Materials, 1991, Torts, page 48.
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