Ah, baseball. It’s America’s pastime, what with the beer, hotdogs, and homeruns. But an article by Insurance Journal details how a baseball game can easily lead to America’s other favorite pastime: filing lawsuits.
Flashback to May 30, 2010, at Turner Field. An Atlanta Braves outfielder hit a ball behind the third-base dugout, and it struck a six-year-old girl in the forehead. Her skull was fractured in 30 places, and her parents are suing the team, alleging that the lack of protective netting is to blame for the injury.
The Braves’ lawyers are depending on the “baseball rule” to protect them from liability over the injury. Though the rule isn’t in place in Georgia where the lawsuit is happening, it is in other states. The rule holds that stadium operators can’t be held liable for stray balls and bats flung into the stands so long as there is protective screening behind home plate and adequate seating elsewhere.
Plus, major league baseball tickets have a disclaimer that states fans assume the risk of being injured by balls and bats. But when it comes to a child’s injury, disclaimers may not be enough to protect the team. After all, she’s too young to assume the risk.
And this brings us to the moral of the unfortunate story: even if your use disclaimers for your business’s work, you still have liability exposures. Let’s go over some tips for creating disclaimers and look at ways to protect your business if your disclaimer doesn’t hold up in court.
Just to make sure we’re on the same page, let’s review what a disclaimer does. In short, a disclaimer is a statement that denies responsibility for particular acts or omissions. They aim to limit another party’s ability to sue for negligence. Sometimes these statements appear in contracts (e.g., in user agreements); other times, they act as one-sided warnings (e.g., warnings on the back of a baseball game ticket).
But disclaimers are notoriously challenged in court, even though their sole purpose is to help someone evade the courtroom. Often, the courts consider whether the law permits exclusion of liability given the circumstances and whether the act in question falls within the disclaimer’s scope.
If you’re going to use disclaimers to try to limit your liability for certain situations, be sure it’s up to snuff. A strong disclaimer should be…
- Specific. If the disclaimer is too vague, someone could assert that they weren’t adequately informed about their risk.
- Understood by laymen. It shouldn’t take a legal expert to read and understand the disclaimer. Any person who engages with your business should be able to name the risks they are taking on by working with you.
- Written by a lawyer. Just like your business contracts, disclaimers should always be written and approved by a lawyer. Your attorney can ensure the wording can stand up to legal challenges. (To learn more about limiting liability through contracts, read, “Case Study: How Good Contracts Can Protect You From Legal Trouble.”)
- Legally sound. There has to be underlying legal support for the disclaimer. In other words, if you’re legally considered liable, a disclaimer likely won’t spare you a lawsuit.
Disclaimers may work better in some industries than others (depending on the legal infrastructure). For example, as a doctor, you’d be hard pressed to prove that a disclaimer absolves your practice of its responsibility to adequately treat your patients. (Related reading: our Malpractice Insurance blog series.) But for an investment broker, a disclaimer about the risk involved with high-stakes investments may be enough to inform investors about their risks and limit liability. Again, this can change depending on the laws that govern your industry.
Notice: Your Disclaimer Isn’t Enough
Even properly penned disclaimers can be disputed, and the court’s opinion on a “valid” disclaimer can be subjective. That’s why, as a failsafe, your business should always invest in appropriate liability coverage.
Adequate business liability insurance can help you pay for…
- Legal defense fees.
- Settlements (when the case settles out of court).
- Judgments (if you’re found liable).
- Other court costs (e.g., witness fees).
For example, say someone brings their Pomeranian to your dog spa for grooming. The sign in your lobby acts as a disclaimer, stating that your establishment can’t be held liable for the actions of the animals at the spa. But if another dog bites that little Pom when the owner leaves the spa, your disclaimer may not be enough to shield you from a lawsuit. After all, the animal was in your care, and a court may find that it is reasonable for the owner to expect you to keep the dogs separated, no matter what your disclaimer says.