Ryan Byers, an attorney with the Jacksonville, Illinois-based law firm Rammelkamp Bradney, says shop owners and managers need to be prepared to protect themselves in the event of an onsite customer injury.
“You certainly want to plan for the rare and extreme case to make sure you’re protected,” he says.
When Are You Liable?
It’s an all-too-common trope that has been played out across TV and pop culture: A customer at a store hurts themselves and, whether it was the store’s fault or not, threatens to sue. The business owner, for one reason or another, offers to settle with the customer right then and there to avoid any legal action. Everyone walks away happy and can go about their business as usual.
Though that scenario seems like it should be a win-win, Byers says it fails to account for several important factors and could do more harm than good for a shop and its owner.
The first, and arguably most blatant, inaccuracy of that scenario is liability. Byers says because someone is injured on the premises of a shop, doesn't mean the shop is liable.
“The business or one of its agents is going to have to have done something negligent that results in the accident occurring,” Byers says. “Effectively, if you do something negligent that results in someone’s injury, you’re going to be liable.”
The legal definition for negligence is purposely broad and varies from state to state, Byers says, in order to cover a wide base of negligence claims. Essentially, a person is considered negligible “if they did not act as a reasonable person would have acted under the circumstances.” For example, if an employee spills oil or another fluid on the ground and does not clean it up right away, that would be classified as a negligent act if a customer or other employee slipped on that puddle and hurt themselves.
“You might think that’s an open definition, and that’s because it is,” Byers says. “It’s intended to allow a court or a jury to look at all the circumstances of a particular case.”
Commercial General Liability
Byers says the best way to make sure your business is protected is through a Commercial General Liability insurance policy, which The Hartford insurance company says “helps protect your business from claims that it caused bodily injuries or damage to another person’s property.”
A $1 million CGL policy through The Hartford costs “a few hundred to $1,000 annually” per the company’s website, though costs can vary based on several factors such as payroll size and claims history. The company also points out that its CGL does not cover damage to your own property or injuries to employees.
On top of differences between a company’s policies, Byers also points out there are different rules from state to state about what kinds of incidents your shop could be liable for, and what plaintiffs can and cannot recover through a lawsuit. He recommends staying in regular communication with your insurance agent to make sure that your policy is the right fit for your business.
“Most CGL policies renew annually,” Byers says. “It wouldn’t be a bad idea whenever that renewal comes up to check in with the agent and say, ‘Hey, these are the changes that my business has had–what changes are you aware of and do we need to change our coverage as a result?’”
Other Ways to Protect Your Shop
Byers says there shouldn’t be a one-size-fits-all approach to dealing with an on-site customer injury; how you respond depends on the nature and severity of the injury. If the injury was caused by a dangerous condition and the injured party is still imminently in harm’s way, Byers says you can and should help them move out of that area if possible.
If the person can “leave the site of the accident under their own power … and are not at risk for further harm by doing so,” Byers says you should let them be the one to decide when they’re going to get up.
“The last thing you want is somebody who’s injured, maybe don’t realize the extent to which they’re injured, and you encourage them to move or physically move them and you cause further injury,” he says.
If your shop has security cameras, Byers says preserving that footage as quickly as possible can help exonerate you of some negligence claims. It can also look bad if you have cameras but don’t preserve the footage.
“That could be used by an opportunistic plaintiff to make you look more guilty than you actually were,” Byers says.
In addition, making sure you contact your insurance provider to start a claim as quickly as possible will also help, according to Byers, as most CGL policies include a provision that says your shop will provide any notice of potential claims, and waiting to contact them might give the insurance company an argument that your shop has waived its coverage.
Similarly, Byers advises not to try to settle with the injured party by yourself. Most CGL policies will place the power to settle with the insurer, and settling without your insurance agent or an attorney present might leave your shop without the necessary releases of liability.
“You don’t want to potentially void your coverage by doing something that impedes your insurance company’s rights,” Byers says.
Dealing with injuries in your shop–especially to customers–can be a nerve-wracking and intense process, but Byers says dealing with the affected party fairly and with respect can go a long way in making sure the situation plays out as well as it can. Checking in on the customer and making sure they feel thought of–while not saying anything that sounds like an admission of fault–can be the difference in deciding whether your shop has a court date.
However, Byers says the best way to avoid liability claims is to make sure that your shop has policies and best practices in place that prevent an injury from happening in the first place.
“An ounce of prevention is worth a pound of cure,” Byers says. “Nobody is going to be 100% perfect in that regard, but the more preventative steps you can take, the better you’ll be in the long run.”
