Namba's World: Are you "Waivering"?
September 26, 2006
When we arrive on a job site and see issues that may affect the performance of our installed product, what do we do? Do we walk; or do we work around the issues because we know that this is just how things are in the construction trade? We can always have the general contractor or end user sign a release waiver, right? Well, if you have ever been involved in litigation you may find that a release waiver may not always work in your favor. Knowing that there were issues that may affect the performance of the flooring and having the end user sign a release waiver stating you are not going to be liable for any future problems is hard to sell to a judge who asks the questions, "If you knew that there would be problems or issues why did you install the job?" "Are you not the professional?" "Shouldn't you have known better?" Remember, the judge goes by the letter of the law and wants only the facts, and chances are you will be going up against a shrewd lawyer that is trying to win the case for their client.
Even though the issues or concerns were present prior to you installing the floor covering and even though you may not be able to control or correct the issues, once you accept the substrate and site conditions, you may be held accountable for a failure in the future. In a previous article I wrote about documentation of site conditions; I will once again reinforce this importance. Now let's take it to the next step; if there are conditions that are not acceptable for the installation, we need to create a legal document that will stand up in a court of law. So how do we go about doing this? We've just discussed the shortcomings of a release waiver if litigation occurs. Let's begin with the proper wording of this type of document.
The proper use of language in a legal document can be critical when it comes to protecting you and your company. By just stating in a release waiver that you will not be responsible, that is well, not responsible.
Fortunately for me, I have a very good friend who is also a lawyer. I asked him one day if there was any type of legal document that would protect my company from possible litigation when we are asked to proceed with an installation that does not meet industry or manufacturer requirements, and knowing that the installation has to proceed regardless. A Letter of Notice, Protest, and Assumption of Risk is what he drew up for me. An example of this type of document is shown on the previous page.
Keep in mind that no matter how strong the wording of the document, one can always take someone to court; this type of document just helps in giving you a stronger case to support your side.
This document has worked for our company, but it is always recommended to seek legal advice for documents regarding your own company by someone in the legal profession. If you would like to obtain a copy of this document, contact me at firstname.lastname@example.org; (800) 624-6880.