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Posts Tagged ‘liability’

Efficacy of Covid-19 Liability Waivers

Posted on: September 2nd, 2020

By: Caleb Saggus

Liability waivers are not new, but Covid-19 is. As we try to venture back to some form of normalcy, the effects of Covid-19 remains a topic of legal uncertainty. The private sector is playing a part in shaping the legal parameters of responses to Covid-19 by in some instances requiring their respective patrons to sign liability waivers before obtaining offered services. 

As a contract, and because it relates to the relinquishment of the right to recover for tort-based claims, waivers are governed by state law. And, while most states adhere to similar general principles regarding waivers, outliers exist, and there are variations specific to particular states. The typical variations could be more pronounced in the context of Covid-specific waivers, and new variations could develop.  Thus, the extent to which a waiver will ultimately withstand scrutiny by a court will likely vary from state to state to some extent.

As a general proposition, however, waivers have limits, and this will likely remain true for Covid-19 liability waivers. Generally, waiver provisions for acts constituting gross negligence or intentional conduct are unenforceable, as are provisions that are overly broad. Therefore, businesses that use Covid-19 liability waivers should consider expressly identifying that the waiver covers claims related to injuries related to Covid-19 and are based on the business’ negligence.

Another nuance to consider is the effect if a patron refuses to sign a waiver. A court might be more inclined to find a waiver unenforceable as a violation of public policy if the service being denied based on a refusal to sign the waiver is for a more “essential” business rather than one of pure leisure or choice.

Perhaps more global in its effect on Covid-19 liability waivers is state legislation giving entities immunity for Covid-19 liability.  Such legislation may render waivers unnecessary—but that could depend on whether there is any gap in the legislation leaving a potential for liability that a waiver could fill. Indeed, many states have already enacted Covid-19 immunity legislation. For these states, waivers are likely hollow as far as protecting against liability but might nonetheless still be used by businesses to prevent frivolous lawsuits.

Ultimately, waivers may prove to have little practical significance in the litigation world given the likely difficulty in proving a Covid-19 liability lawsuit. This stems from the inherent difficulty in contact tracing and thus establishing causation.  Depending on the scope of evolution surrounding these issues, and whether a state has enacted Covid-19 liability immunity legislation, the extent to which Covid-19 liability waivers will be an effective protection from liability moving forward remains unclear.  What is clear is that for now it will depend on the various states and their respective legal regimes.

If you have questions or would like more information, please contact Caleb Saggus at [email protected].

Holiday Office Parties: Serving Up Both Cheer … and Fear!

Posted on: December 3rd, 2019

By: Melissa Whitehead

There is no doubt that the Holiday Season is in full swing – and that means workplace holiday parties! While these festive events are great for increasing workplace camaraderie and celebrating achievements of the year, they are more well known for the high risk of inappropriate behavior. Somehow, companies that spend all year working to create a positive, healthy and respectful workplace find themselves on a Monday morning in December, calling counsel to ask for guidance in addressing some incident that happened at the office holiday party over the weekend. Here are some tips and things to think about, in hopes that your company can avoid making that dreaded call to counsel that begins with, “So, we had our office holiday party on Friday and…”

To Serve Alcohol or Not to Serve? Alcohol consumption at office parties creates a number of risks for the employer. First, if an employee consumes too much alcohol at the party and makes the poor choice to drive home and gets in an accident, the employer in many states (including California) can be found liable for any damage caused by that employee (including injury to others). Further, and more common, alcohol lowers inhibitions and can make employees feel more comfortable saying and doing things that they would otherwise never do or say in the workplace. This is why holiday parties are a common ground for #MeToo moments and similar issues.

That said, the reality is that most workplaces will serve alcohol at their office parties. Some tips for reducing the risks that come with serving alcohol include: (1) have a bartender or server serving drinks (as opposed to an open bar); (2)  enforce a 2-drink limit per attendee (e.g., drink tickets); (3) pay for transportation home from the party or overnight accommodations; and (4) designate an executive or HR professional to “cut off” attendees that appear over-served. It is also a good idea to send a notice to employees in advance of the party, reminding them that the company’s anti-discrimination, anti-harassment, and rules against hostile work environment are all still in full force and effect during the office party.

To Pay or Not to Pay? Another common question is whether employees must be paid for their time at the holiday party. This generally boils down to whether attendance is mandatory. If an employee is required to attend the party, in most states it will likely be considered “time worked” and subject to minimum wage and overtime rules. This issue can be addressed by holding the party during normal working hours and paying employees for their time as with any other workday. Alternatively, employers should make clear that attendance is optional.

Of course, this blog does not raise or address all risks that come with the workplace holiday party, but following these helpful tips will help you avoid becoming the next viral sensation of the holiday season! Happy holidays!

If you have any questions or would like more information, please contact Melissa Whitehead at [email protected].

Georgia Supreme Court Clarifies the Essential Elements of a Failure to Settle Claim within Policy Limits

Posted on: March 18th, 2019

By: Phil Savrin

In recent years, Georgia has become fertile ground for setting up insurance companies for extra-contractual damages based on the failure to settle a liability claim within policy limits. Partly, the reason for this reputation is that the “ordinary negligence” standard governs these types of claims and there is broad language in the cases that a jury must generally resolve the reasonableness of the insurer’s decision not to settle the claim at issue. Of course, by the time the claim even exists there will have been a judgment entered in the liability case in excess of the limits of the policy, making it difficult to tease through the chronology of the case without the benefit of 20-20 hindsight. The challenge in defending these types of claims is often reconstructing the “lay of the land’ at the time the decision was made without the judge or jury focusing on what occurred or developed thereafter.

In 2003, the Supreme Court issued its decision in Cotton States Insurance Company v. Brightman, whose main holding is that an insurer can avoid a “failure to settle” claim altogether by tendering its limits even if the demand is conditioned on payments by other insurers over whom it has no control. A lesser known holding of Brightman, however, is its rejection of the intermediate appellate court’s holding that an insurer has an “affirmative duty” to engage in negotiations to determine whether the case can be settled within limits. Although implicit in this reasoning is that a demand for limits needs to have been made, subsequent case law has muddied the waters by suggesting that all that needs to be shown is that there was a “reasonable opportunity” for settlement within limits to state a claim for failure to settle within limits.  And because an ordinary negligence standard applies, insurers have had to defend against assertions – often backed up by expert witnesses – as to whether the insurer knew or should have known that the case could settle within the limits of coverage even in the absence of a demand.

The Supreme Court put an end to that uncertainty in First Acceptance Insurance Company of Georgia, Inc. v. Hughes, decided March 11, 2019. In a very powerful decision, the justices stated succinctly that “an insurer’s duty to settle arises when the injured party presents a valid offer to settle within the insured’s policy limits.” From that short holding it was relatively simple to find that First Acceptance could not be liable for the $5.3 million judgment because there had not been a valid time-limited demand for the policy limits of only $25,000.

Essentially, the holding of the case is that the burden is squarely on the injured party to make clear to the insurer that the liability claim against the insured can be resolved within the coverage of the policy. Although not stated expressly in the opinion, this holding makes sense given that the injured party is the only one (as opposed to the insurer or the insured) who knows at the time whether the case will settle within limits. Likewise, the effect of the decision is that the injured party must put its cards on the table in terms of its willingness to settle and not be allowed to reap rewards from keeping the insurance company in the dark as to the ability to settle within limits. In that manner, the decision restores a degree of sanity to the adjudication of these disputes by restricting the exposure to instances in which the insurance company has rejected a clear demand for settlement within its limits, with the remaining issue being whether the insurer acted reasonably considering all the circumstances that existed at that time.

If you have any questions or would like more information, please contact Phil Savrin at [email protected].

A Series of Particular Events: Foreseeability and the First Circuit

Posted on: February 6th, 2019

By: Thomas Hay

A three-judge panel on the First Circuit denied Omni Hotel’s petition for review of their decision to overturn a lower court ruling that awarded summary judgment to Omni and reinstated a negligence charge filed by a man who was beaten, and his arm broken by a group of individuals in Omni Hotel’s Providence, Rhode Island hotel lobby. The First Circuit held that the development of a particular sequence of events can, without more, render future harm foreseeable.

The First Circuit’s opinion effectively broadened the duty of care imposed on hotels to protect guests and members of the public against spontaneous criminal conduct by a third party.

The plaintiff lived in a condominium complex adjoining the hotel. He had access to and regularly used the hotel’s services and amenities. On the night in question, hotel security had evicted from the premises a group of youths whose partying had caused a disturbance. Some of the evicted group returned outside the hotel with a case of beer and attempted to pick a fight with a passer-by which was seen by the hotel’s valet. A number of the group would later reenter the hotel’s lobby and proceed to beat the plaintiff resulting in the breaking of his arm.

While the lower court found that Omni had a special relationship to the plaintiff, as the “possessor of land that holds the land open to the public/member of the public,” on the issue of foreseeability, the lower court found that the hotel did not have a legal duty to protect the plaintiff from an attack spontaneously committed by third parties. Additionally, the lower court found it unforeseeable that the specific rowdy and later evicted group would spontaneously attack the plaintiff.

In the First Circuit’s review of the case, Omni cited Rhode Island cases that pertained to a “past occurrences” theory of foreseeability, whereas the plaintiff cited cases that illustrated a “sequence of events” theory of foreseeability. The First Circuit ultimately agreed with the plaintiff, saying that while it may not have been foreseeable that the group would assault the plaintiff at the time of their eviction, the attack was foreseeable by the time the group had returned and tried to pick a fight with the passer-by.

The First Circuit stated that the development of a particular sequence of events can, without more, render future harm foreseeable. According to Omni, this decision imposes an undue burden on businesses, “which will now unnecessarily face the prospect of a jury trial every time anyone is injured on their premises.”

While the implications of this case as it pertains to the liability of business owners and injuries that occur on their premises goes to be seen, hotels in the First Circuit should be wary of omitting to assist any guest or even member of the public from the actions of aggressive third parties.

If you have any questions or would like more information, please contact Thomas Hay at [email protected].

 

Mu v. Omni Hotels Management Corp., 885 F.3d 52 (1st Cir. 2018)
Mu v. Omni Hotels Management Corp., 882 F.3d 1 (1st Cir. 2018)

School Shootings: Is There a Constitutional Duty to Protect Students?

Posted on: January 16th, 2019

By: Jake Daly

Sadly, our nation’s schools are not free from shootings and other violent crimes. When such crimes occur on private property, the laws of many states provide the victims a remedy (money damages) against the owner of the property and/or the operator of the business located on the property. But what about crimes that occur on public property, particularly a school campus?

For example, Nikolas Cruz killed 17 students and school officials and injured 17 more during a shooting rampage at Marjory Stoneman Douglas High School in Parkland, Florida, on February 14, 2018. Fifteen students who survived the incident, but who claim to have suffered psychological injuries because of it, sued Broward County, Andrew Medina (a school monitor), Robert Runcie (school superintendent), Scott Israel (Broward County Sheriff), Jan Jordan (captain with the Broward County Sheriff’s Office), and Scot Peterson (school resource officer) for violating their substantive due process rights under the Fourteenth Amendment to the United States Constitution. Specifically, the plaintiffs alleged that the defendants had a constitutional duty to protect them from Cruz and that they violated this duty by intentionally disregarding warnings about Cruz, by maintaining a policy of allowing “killers to walk through a school killing people without being stopped,” and by failing to provide adequate training to school officials. The defendants denied liability on the ground that there is no constitutional duty to protect students from being harmed by third parties.

The lawsuit was filed in the United States District Court for the Southern District of Florida and was assigned to Judge Beth Bloom, who was nominated by President Barack Obama and confirmed by the Senate in 2014. In her order granting the defendants’ motions to dismiss, Judge Bloom relied on United States Supreme Court precedent holding that the Due Process Clause is “a limitation on the State’s power to act, not . . . a guarantee of certain minimal levels of safety and security.” In other words, “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors,” such as Cruz. Nevertheless, the Due Process Clause does impose a duty on state actors to protect people who are in their custody from harm by third parties. But, as Judge Bloom ruled, this duty does not apply to this case because students are not considered to be in the custody of the state such that they have been deprived of their ability to take care of themselves. Accordingly, the defendants did not violate the plaintiffs’ substantive due process rights.

This case serves as a good reminder that the defendant in any case must have owed the plaintiff a legal duty to act or refrain from acting in a specific way. A moral duty will not suffice. Liability cannot be based on how innocent or sympathetic the plaintiff is. Nor can liability be based on the fact that a tragic event has occurred. There is no question that the plaintiffs in this case were innocent and “deserving,” but that is not enough. There must have been a legal duty. The plaintiffs in this case lost because there is no constitutional duty owed by school officials to protect students from harm inflicted by third parties. To some, this rule may be seen as unfair and contrary to common sense, but there are good policy reasons for it. After all, the purpose of the Due Process Clause was to protect people from the state, not to ensure that the state protected them from each other.

For additional information, please contact Jake Daly at [email protected] or (770) 818-1431.