If you run a business and want to understand how to avoid being sued, this series is for you. Each week or so, I will share, in order, the content from my manual Don’t Get Sued! A Guide to Help Reduce Your Business’s Exposure to Lawsuits. The book first appeared in January 2008. Since then, it has become a staple for businesses around the country. Now, regular visitors to our firm’s website can read it at no charge. You can also buy the entire text on Amazon.com. This week, we begin with the Introduction.
Why I Wrote This Guide
To the best of my knowledge, a seasoned plaintiff’s personal injury attorney has never written a booklet like this for business owners. I have represented thousands of people injured by someone else’s negligence. Many of those cases included claims against businesses, both large and small. My goal is simple. I want to explain what goes into a successful plaintiff’s case against a business. With that knowledge, an owner can learn which mistakes to avoid and which steps reduce exposure to legitimate lawsuits.
Remember, though, that anyone can sue anyone, even when the elements of a successful claim are missing. Still, if those elements are absent, a knowledgeable plaintiff’s attorney rarely takes the case. Hopefully, after you read this booklet, you will trim those elements in your own operation. A frivolous suit can still surface, of course, but strong habits make a serious claim far less likely.
The Two Most Common Claims Against Businesses
By far, the two most common claims against businesses are negligence, covered in Chapters 1 through 8, and breach of warranty or sales-related issues, covered in Chapter 9. Let’s start with negligence, which is my field. A negligence case rests on a familiar idea. When a person engages in an activity, that person must act as a reasonably prudent person would under similar circumstances. The law calls that obligation the duty. If the person breaches that duty, and a foreseeable plaintiff suffers an injury as a direct result, then all four elements of a prima facie negligence case exist: duty, breach, causation, and damages. You can review a plain-language overview of these elements at the Cornell Legal Information Institute.
Negligence does not apply only to individuals. It also applies to businesses. By “businesses,” I really mean the owner. The owner answers for the negligent actions of employees and agents, and the owner owes a duty to business invitees, including customers, employees, and people making deliveries. Throughout this series, I will explain why businesses most often face negligence claims. I will also offer practical ways to avoid those lawsuits.
Breach of Warranty in Brief
Breach of warranty actions usually involve the seller’s obligation of tender and delivery and the buyer’s right to inspect. These issues most often turn on promises, both implied and express, that a product or service will satisfy the buyer. Chapter 9 covers these claims. It also covers the disclaimers a seller may use to limit exposure.
An Important Word About the Law
As you read, please keep in mind that the law I apply here may not match the law where your business operates. Therefore, you should direct any questions about how this guidance applies to a qualified attorney admitted to the bar in your state. My suggestions are not legal advice. Finally, my suggestions assume that you have set up your business appropriately, whether as a corporation, a limited liability partnership, or another type of entity. That structure matters, because it helps you avoid personal liability. The suggestions in this book aim to reduce liability for your business, not necessarily for you as an individual.
Please check back shortly to read Chapter 1, which deals with premises liability.
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.
If you have been injured, our experienced personal injury lawyers and slip and fall lawyers are available for a free consultation.
