Liability Shields and Personal Injury Litigation

By Ryan Y. Cunningham | August 31, 2020

More and businesses are trying to shield themselves from liability or trying to control the liability process. Many businesses are now requiring that consumers sign contracts that require disputes to be heard by a board of arbitrators instead of a jury of your peers. Businesses are also trying to protect themselves by having consumers agree to waive any liability claims if they are injured.

The efforts to protect a business from liability are called liability shields. They take different forms.

  • Assumption of the risk. One common form is for people who attend sporting events. Ticketholders generally waive their right to file a lawsuit if they are injured by a foul baseball, an errant basketball throw, a player running into them, and other sporting activities. The ticketholders generally “assume the risk” that they may be injured. Legal waivers, based on an assumption of risk, are often used where activity may be dangerous. Ski lodges and bungee-jumping sites usually request that a participant sign a legal waiver based on an assumption of the risk of the danger.
  • Another form of liability shield is based on contract.
    • Makers of products may try to argue that a consumer who uses the product waived liability when they purchased the product. Generally, these liability shields are considered against public policy and are usually unenforceable.
    • Physicians and hospitals also may try to have a patient sign a waiver that if they are hurt during surgery, that the patient can’t file a claim for medical practice. These types of contracts may also be against public policy. To the extent they are legal, they are often interpreted very strictly to help protect the victim of medical malpractice.
  • Legislative liability shields. These are laws that are enacted to protected certain types of lawsuits. One common liability shield, known as “governmental immunity,” applies to claims against the state. The state is protected against some types of lawsuits on the argument that, without the protections, the government would not be able to serve the public. This type of liability shield is called “governmental immunity.”

Liability shields and COVID-19

As a result of COVID-19, businesses and schools are seeking legislative liability shields to protect themselves from claims someone contracted COVID-19 (and died or suffered ill health or the necessity of a 14 day quarantine) while working for the business, entering the business establishment, or entering the school grounds.

According to an NPR report, businesses and schools are arguing that without legislation to protect them from lawsuits, or without having workers, consumers, teachers, and students sign legal waivers – that the business and schools would be forced to close. They argue that the legislative protection or waivers are needed because closing the business/school may mean having to file for bankruptcy. The business and schools argue they should only be liable if they are reckless, not negligent.

Advocates for workers, consumers, and students argue that the negligence standard is already quite high. The precautions that need to be taken such as social distancing and masks are already fairly well-established advocates say. Advocates, including personal injury lawyers, argue that the possibility of having to pay for damages is the very ticket/mechanism for ensuring that businesses and schools establish the necessary safety protocols. Without the possibility of being responsible for a COVI19 victims medical costs, pain and suffering, lost income, or wrongful death damages – the businesses and schools are free to ignore safety protocols.

At Cunningham & Mears, our Oklahoma personal injury have a strong track record of success negotiating strong settlements and obtaining high jury verdicts. We anticipate the arguments that defense lawyers and insurance typically make including trying to deny liability. We demand compensation for your medical bills, pain and suffering, lost wages, and other damages. If you were injured or a loved one was killed in any accident, call our seasoned trial lawyers. You can reach our Oklahoma City office at 405.232.1212 or complete our contact form to make an appointment.

 

Posted in Personal Injury