Liability Claims 201

Sometimes, there are things in the world that we can't control. You may do your best to keep yourself and other people safe at home, in public, at work, but you can't always be the protector. Unfortunately, not everyone understands this. It can be hard, especially for small businesses, if you're confronted with liability claims for negligence.

First, be Professional

If you are faced with liability claims, the most important thing to do is to act professionally. This means don't try to contact the plaintiff yourself. Engage a legal representative, if you don't already have one, and refer all contact to and through them. Chances are if someone is bringing civil action against you they're past a stage when they can sit down and talk to you about what they feel you failed to provide.

What are Torts?

A tort is defined as an injury made to another person or their property. It comes under the blanket of civil law and is therefore to do with a person or party bringing legal action against another person or party - as opposed to criminal law when the state brings an action against another person or party. Civil law is compensable under law, most frequently with a monetary payout. A tort injury does not have to be physical harm and the legal definition can be contested if there is no concrete precedent, but is commonly accepted to include psychological and emotional damage, in addition to bodily harm and damage to property. There are three different types of torts; negligence, gross negligence and intentional wrongdoing.

Can Someone Claim Negligence Against Me?

Yes. Even if they have signed a liability waiver they are still able to make a claim (although of course in this instance, even with a valid liability waiver they would unlikely get very far with it). To make a successful claim of negligence against you, the plaintiff has to prove four points to a standard high enough to satisfy the courts: firstly that you had a legal duty of care, secondly that what you did, or failed to do, did not fulfil that duty, thirdly that they suffered some form of injury (be that physically, financially or emotionally) and finally that these injuries were proximately sustained by your breach of duty.

Can I Insure Myself Against Tort Liability?

You certainly can insure yourself against tort liability. There is a large insurance market out there so make sure you do your homework and find the insurer who is right for you. Develop a personal relationship with your insurer, because the more involved they feel with your business the more likely it is that you will be able to work well with them. If they understand your objectives as well as you do, they can also more readily identify the types of insurance you will need.

Is there General Liability Insurance?

There are several types of general liability insurances, so again the best thing to do is to talk to different insurers about the best program for your needs. Companies with only one type of insurance usually have commercial general liability, which covers claims against the company which are based on bodily injury, property damage, advertising injury and personal injury (which incorporates slander or libel). The benefit of this type of insurance is that it typically includes cover of legal costs which accumulate when claims need to be settled or defended. These types of significant financial downfalls can be the breaking point for small businesses so investing in liability insurance is highly recommended. Of course, it's important to keep in mind that any messy, publicised liability claim can make an impact on the reputation of a business and its standing in the community, and no-one can insure against that.

What do Waivers Cover?

Typical waivers are an acknowledgement by both parties in a working relationship of the responsibilities each will take on board. It may sound a little like "I voluntarily accept full responsibility for any risks or loss, property damage or personal injury, including death, which may be sustained by me. I also accept full responsibility for any loss or damage to the property I own which occurs as a result of participation/engagement in this tour/sport/contract/event/etc". Standard waivers also protect the company's employees and sometimes affiliates from liability. The use of the word "voluntary" is important as the forms must be signed voluntarily to be acceptable legal documents.

Unspoken Waivers

These are the kinds of things you see on signs which relate to your accepting the conditions of using a facility before you use it. For example, many national parks have boards at the beginnings of walks outlining how much water to carry with you and that you hike in the park at your own risk. This doesn't mean if you were to get into danger no-one would come to look for you, but it does mean you agree to not hold the park responsible for any injuries you sustain. Similarly, when you buy tickets to music festivals printed on the back of the ticket or as part of the booking process, is a waiver that states by entering the event venue you are, within reason, accepting responsibility for any damage or injury you may sustain.

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