Most of us get into the holiday spirit by going to holiday parties, by taking a holiday vacation, or by giving gifts to family and friends. But with what some believe is an explosion of litigation, can even the holidays be a source of liability to a creative litigant or attorney? If so, how can you protect yourself from liability? Here are some tips on how to protect yourself from holiday lawsuits.
Holiday parties
Host liability related to drinking:
A social host who gives his guests drinks and then, knowing that the guest is drunk, allows the guest to leave the premises, may be liable if the guest gets into a car accident (or engages in some other dangerous activity) that injures or kills someone, or damages property. Some courts have expanded the Dram Shop laws, which have held bar and tavern owners liable for serving drinks to patrons who are already drunk and who later cause an injury to another. The facts of each case, however, are important.To find liability, a court would have to determine whether someone could reasonably foresee that by giving a guest who had already been drinking more alcohol, it would be more likely that the guest would not be able to operate his or her car carefully. In those states where liability can be imposed, courts have treated these cases like traditional negligence cases, imposing liability on any person who creates an unreasonable risk of harm by serving alcohol, knowing that someone who is drunk is more likely than not to cause injury. Note, however, that states are split on this question.States are not split, however, if alcohol is served to minors. States generally impose liability on people serving alcohol to minors, who then get on the road and damage property, other people, or even themselves.Liability for guests who slip and fall on a host's property:
If someone is walking up your driveway or along your sidewalk and slips and falls on accumulations of ice or snow, they may be able to sue you for not properly clearing the walkway, although the states, again, are split on this question. Some states say that injuries that result from a natural accumulation of ice and snow, where the danger is open and obvious, puts the guest on notice of the natural hazards created. Other states, however, impose liability where, a landlord, for example, has not cleared a walkway in violation of a state law or city ordinance.The safest course of action, of course, is to clear away the snow and put your guests on notice that the weather is bad and the walkway may be slippery. Check with your local city hall or state attorney general's office to determine whether your city or state has laws addressing this situation.One exception to this rule is an "unnatural" accumulation of ice or snow. For example, if someone dumped a bucket of water on a walkway in freezing weather, and the condition is not obvious to someone who would be using the walkway, that may create an "unnatural" condition that could give rise to liability.
Taking a friend on vacation over the holidays
Waivers of liability:
It is possible to waive liability for claims that may arise in the future, but have not yet arisen. People are using waivers to request that a friend's parents waive any claims against a non-parent for injuries which may occur while away on holiday travel.Generally speaking, the law allows you to waive any right you have (except those that a court may deem important for public policy reasons). This rule can create some thorny questions, however. For example, while a parent will stand in the shoes of their child in bringing any action for liability, can the parents completely waive the rights of a minor child? In some cases -- yes -- in others -- no. Ultimately, courts will have to decide these questions, and the best course of action may be to insure against this issue instead of depending on a waiver of liability, which may or may not be enforceable in a court of law. Limited power of attorney:
Limited powers of attorney are very important when taking another person's minor child away on a vacation. For example, if a medical emergency occurs while away, and the parent of the child cannot be contacted, would a non-parent be allowed to authorize medical attention to the child? What if the medical attention were given improperly, would that give rise to liability? The answer is that it may, and I suggest getting a limited power of attorney to make healthcare decisions to address the situation where a medical decision may have to be made for a minor child who is away with another family.These powers of attorney are quite simple. They empower you to deal with all medical emergencies affecting a child who is not a family member. The power can be limited in both scope (healthcare decisions only) and duration (only for the period away from home). Most important, some hospitals or doctors will not even attend to the child without seeing the written consent of the child's parent in the power of attorney. Thus, a limited power of attorney can be a valuable tool to prevent liability from occurring.
Gift giving
Age inappropriate gift:
If you know, for example, that a child is two years old and is apt to swallow pieces of a jigsaw puzzle, you could be held liable if a court determined that you created an unreasonable risk of harm to a child, a risk that was reasonably foreseeable, and a risk that resulted in an injury that certainly could have been avoided. To establish liability, however, you would have to show that you were on notice of the age of the child and ignored the age in picking a gift, thereby creating a dangerous risk to the child. Despite the above, such cases are extremely rare. There is a notice and warning on most toys today regarding the appropriate age for children using the gift. Read these carefully so that you don't have to run this risk. Allergic reaction to a gift:
The same rules hold true if someone is allergic to something that you give them. For example, did you know in advance that a certain fragrance or aroma from a candle would result in the recipient's allergic reaction? If so, you may have created an unreasonable and foreseeable risk to the recipient, and a court may hold you liable. In all of these cases, however, the facts are critically important. There are no hard and fast rules on these issues.
Tips to reduce exposure to liability
Plan and monitor activity:
If you are having a holiday party, plan the activities that will take place, monitor the activity of your guests, and don't have too much to drink yourself. If you see a friend who is tipsy, call for a cab instead of another drink. "One for the road" may be the road to court.Provide warnings:
If it is snowing outside, tell your guests about it and put salt or sand down after shoveling your walkway. It should not come as any great surprise to people in the north that it snows around the holidays, and, if you have taken appropriate action in light of the weather, any exposure to liability will be diminished or removed.Get waivers and powers of attorney:
Although the effectiveness of a waiver is questionable, a waiver of liability from a parent may be a good idea if you are taking another's child away on vacation. Whether or not you get a waiver, however, you should certainly get a limited power of attorney so that healthcare decisions can be made in case a minor's parent is unavailable and an emergency arises.Insure:
Check with your insurance agent to see whether your umbrella policy covers these sorts of exposures. If your current policy does not cover these possibilities, inquire as to the cost to cover them. That way, even if you have done everything you can, you will be insured if a "creative plaintiff" decides to sue you.
Alan Kopit is a consumer attorney with the firm Hahn Loeser and Parks LLP in Cleveland, Ohio and a regular contributor to "Today."