Recently I got a phone call asking me if there was potential liability if a certain situation came up. I get these phone calls every once in a while. Listening they usually come from people trying to do the right thing and who have in the past been involved in a lawsuit or at least been around one. They almost always involve the caller making money off the activity.
The call basically goes like this. I’m thinking of doing this venture, would I get sued if someone gets hurt? In answering the question , I often start with a maybe. Depends on how badly a person is injured. If they are killed or kill someone else and your activities contributed to that happening it is highly likely that you will be included as a defendant. Same thing if a serious injury is involved. Seems like most callers expect that answer or at least were concerned enough about it to make the call.
Next I spend time on what it is that they are doing to make sure that kind of tragedy is avoided. It surprising how little time seems to have been spent on the proactive side of prevent the future problem. This part of the conversation can move to a good exchange as they begin to come up with ideas of protecting the customer from injury and themselves from resulting liability.
The call will usually end with how they were sued this way in the past or heard of a case where this happened. I believe this is evidence we’ve gotten to the point of discussing the real reason they called. I do my best to sort through the tort reform myths that can be added to their explanation. And hopefully help them think through the potential future problems. In a couple of cases I’ve had these same people later call back with cases of their own, mainly because I was the only lawyer that talked to them with their first question.
Reviewing the calls the analysis is usually broken down as:
1) Is the danger realistically likely to happen?
2) what can be done to make sure it doesn’t happen?
3) What is the concern that is the basis for the call?
