Waiver and Release of Liability

I have a little You Pick berry business. It is located on my property. Frankly, I've worked my ass (if Obama can say it, so can I) off to start the business. I've been thinking about liability issues. It seems to me, to incorporate the business would be overkill, and pretty expensive. I probably will get some sort of rider on my home owners insurance to cover the berry picking months. However I have been thinking seriously of having my customers sign (just one time) a form of waiver and release of liability. I've been making house payments for over 20 years (almost there), and I don't want to jeopardize what I've worked so hard for. So here is the question, do you think asking customers to sign such a form would be a big turn off? Do you think I'll lose a lot of customers if I do this? A lot of my business is done on the honor system. I'm not always on the property when the customer is picking. If I make it a requirement for the customer to sign the waiver, then if they don't, and have an accident, I believe I would then have proof that they were illegally on my property (no sign in signature). What do you think?

razbry wrote:I have a little You Pick berry business. It is located on my property. Frankly, I've worked my ass (if Obama can say it, so can I) off to start the business. I've been thinking about liability issues. It seems to me, to incorporate the business would be overkill, and pretty expensive. I probably will get some sort of rider on my home owners insurance to cover the berry picking months. However I have been thinking seriously of having my customers sign (just one time) a form of waiver and release of liability. I've been making house payments for over 20 years (almost there), and I don't want to jeopardize what I've worked so hard for. So here is the question, do you think asking customers to sign such a form would be a big turn off? Do you think I'll lose a lot of customers if I do this? A lot of my business is done on the honor system. I'm not always on the property when the customer is picking. If I make it a requirement for the customer to sign the waiver, then if they don't, and have an accident, I believe I would then have proof that they were illegally on my property (no sign in signature). What do you think?

I wouldnt be turned off if asked to sign a waiver like that.

good luck.

I would talk to a lawyer (which I am not.)

I've never seen such a thing at a u-pick place before, which makes me wonder if there isn't some sort of simple solution (something like "pick/consume at your own risk" somewhere where customers can see it?)

I agree with MHayes. I wouldn't be turned off by signing something or having a sign posted that says I am liable. But you should definitely talk with a lawyer, preferably someone who has some experience in this area.

razbry wrote:I have a little You Pick berry business. It is located on my property. Frankly, I've worked my ass (if Obama can say it, so can I) off to start the business. I've been thinking about liability issues. It seems to me, to incorporate the business would be overkill, and pretty expensive. I probably will get some sort of rider on my home owners insurance to cover the berry picking months. However I have been thinking seriously of having my customers sign (just one time) a form of waiver and release of liability. I've been making house payments for over 20 years (almost there), and I don't want to jeopardize what I've worked so hard for. So here is the question, do you think asking customers to sign such a form would be a big turn off? Do you think I'll lose a lot of customers if I do this? A lot of my business is done on the honor system. I'm not always on the property when the customer is picking. If I make it a requirement for the customer to sign the waiver, then if they don't, and have an accident, I believe I would then have proof that they were illegally on my property (no sign in signature). What do you think?

Please talk to a lawyer. I'm not giving you official legal advice here, but speaking informally, there are several assumptions you're making here about the effect of a waiver that may not comport with the law. This is a multilayered issue involving guests, invitees, etc., that affect your liability. One, you should have insurance, and I'm surprised that you're not required to. Second, you are inviting people onto your property. What if someone tripped and fell in a huge pothole near the entrance of your property? Obviously, they wouldn't have the opportunity to sign a waiver at that point, yet they're clearly not on your property illegally -- as part of your berry business, you are inviting them on your property (albeit for a limited purpose). Third, would you restrict children from berry-picking? Children cannot sign away their rights in Illinois. Fourth, having a waiver does not protect you from litigation. Are you willing to hire and pay for a lawyer to defend your waiver and pay for the litigation in the meantime? If you had insurance to cover these types of claims, you would tender the claim and its defense to your insurer. These are four issues that I thought of in the thirty seconds it took me to draft this post. I'm sure there are many more that should be discussed with counsel.

In my informal, non-professional opinion, your best bet is to have insurance during your picking season that would defend against any claims.

I have been to several Pick Your Own and never been asked to sign anything. I would talk to your insurance company. Every business has to deal with the same issues.

aschie30 wrote:I'm not giving you official legal advice here, but speaking informally...

In my informal, non-professional opinion...

Look at that. Two disclaimers in a thread about waiver and release. Nifty.

Seriously though, I'm with aschie30. One one hand, a waiver and release is unlikely to hurt you, but on the other (much bigger and more important) hand, having folks sign one may not accomplish what you hope it will. Your best bet is to spend a few bucks and talk to a professional who can help you figure out exactly what you need to do to protect yourself.

Good luck,
--Rich

I've read about many instances (involving valet parking companies, dry cleaners, coat checks, etc.) where waivers and/or "not liable for damage" signs did not protect the businesses from being sued or losing said suits.

Speaking with an attorney & looking into the appropriate insurance coverage both sound like the best possible advice.

Wow, what excellent advice and response! I think I'll go see my insurance person first. I've got a wonderful lawyer, but it would take a lot of pints of raspberries to pay for his legal opinion...not that it wouldn't be worth it!

You could always try raspberry jam...I know we're getting a bit desperate, our last jar ran out three weeks ago...(sadly, we have no lawyers in the family, although Sparky's getting there...you should hear him advance the cause of a later bedtime)

Good news! I will have raspberry jam and jelly (made it myself) available. I still am not sure how much to charge for the stuff.

Razbry - I agree with what others have said..talk to lawyer or at least an insurnance person . A signed waiver that you have written up may not be enough.The last thing you need is to lose property or anything due to some opportunist. There are a lot of them out there nowadays. Liability insurance is a must IMO. I can PM you the name and number of the guy I use if you want if your homeowners doesnt cover that sort of thing. It really should be part of your food product business

Hi,

I wouldn't bother with a waiver, because whatever you hoped for will evaporate in court quickly.

Ditto on adequate insurance, then get quotes from several companies. Liability insurance for a wee special interest group went from $1000 to $500 to $400 by simply asking around.

Regards,

Khaopaat wrote:I've read about many instances (involving valet parking companies, dry cleaners, coat checks, etc.) where waivers and/or "not liable for damage" signs did not protect the businesses from being sued or losing said suits.

Speaking with an attorney & looking into the appropriate insurance coverage both sound like the best possible advice.

I've also read/ heard about many instances where people lost lawsuits even after they paid to speak to an attorney!

I ended up talking to my insurance guy. He claims an "umbrella" on my home owners policy is all I need to cover my small business. Since I buy insurance for the house and two cars, I get the "umbrella" for $200/year. Sounds like a good deal to me!

razbry wrote:I ended up talking to my insurance guy. He claims an "umbrella" on my home owners policy is all I need to cover my small business. Since I buy insurance for the house and two cars, I get the "umbrella" for $200/year. Sounds like a good deal to me!

You easily bought a good night's rest no matter what happens.

Regards,

$200/yr sounds like a lot for an umbrella insurance policy (I'm assuming the typical $1,000,000 coverage) - given that claims against such policies are exceedingly rare ... but then, maybe they're a cash cow for the insurance companies. Granted, maybe I'm the one out of date on going rates. I think I'll check with my insurance agent to see what it would cost me these days, and post back.

Katie wrote:$200/yr sounds like a lot for an umbrella insurance policy (I'm assuming the typical $1,000,000 coverage) - given that claims against such policies are exceedingly rare ... but then, maybe they're a cash cow for the insurance companies. Granted, maybe I'm the one out of date on going rates. I think I'll check with my insurance agent to see what it would cost me these days, and post back.

Unless you have kids of driving age, annual rates are generally about $100 per $1M of coverage.

=R=

$100/year, that sounds closer to what I thought the going rate was. I'm surprised, though, to hear that kids of driving age are a factor; at first I thought, wouldn't that all be covered by your/their auto insurance? But then I thought, umbrella insurance is for, among other things, just that instance when someone decides to go after you for even more, so I guess the age of your kids could factor in.

The most important aspect of your umbrella policy is that it covers your small business. Homeowner's and Auto policies specifically exclude business. Umbrella policies are broad, and the biggest advantage is that they cover defense costs. Because anybody can sue anybody, which is why waivers don't work in IL, you're never really released from liability.

This is all really interesting. When I talked to my insurance person, he did mention that I could get the umbrella policy for $200/year, provided that I met with certain "minimum" coverage on my house and two car policies. He said he would have to raise the insurance rates on both car policies to get the $200 umbrella policy. So I'm guessing that this umbrella policy is really going to cost me more than the $200. By the way, I do have an 18 year old son driving. I'm already paying $1,800/year for my son to drive. I can't wait to find out how much more his insurance policy will go up to meet State Farm's "minimum" coverage to get the umbrella. Bah.

razbry, get quotes from one or two other insurance companies for all your policies, too.

razbry wrote: I can't wait to find out how much more his insurance policy will go up to meet State Farm's "minimum" coverage to get the umbrella. Bah.

My wife works in insurance, and within the industry State Farm is the gold standard. They might cost a bit more, but State Farm(and their bulldog lawyers) have your back if and when you might need them.

good luck.

The most important aspect of your umbrella policy is that it covers your small business.

Up to a point, I think. What I've been told is that an umbrella policy doesn't provide professional liability insurance. Numerous times I've been asked to provide proof of professional liability insurance as a condition of signing a subcontract for consulting work. I've been advised to respond to such requests by saying that such insurance is prohibitively expensive for my self-owned business and thus I neither carry such insurance nor have the means nor plans to obtain it. I've never been challenged on such an assertion. When I've done work as either an employee or a consultant of a firm that does carry professional liability insurance, I am, in fact, in most cases covered by their insurance.

Possibly too far off the track? Just wanted to make the point that an umbrella policy may cover you for a lot of things, but you should know what it doesn't cover. Should a person delivering a package to my house or coming to my home office for a consultation slip on the ice on my driveway and want to sue me for medical expenses, that umbrella policy would come in very handy. Should someone want to sue me for damages suffered because of a premature failure on a construction project on which I consulted, not so much, or more likely, not at all.

To get back to the OP(razbry)'s original point, it seems to me that, given the nature of the business in question, and professional liability probably not being an issue, the typical-$100/yr-for-$1M coverage umbrella policy would seem to fit the bill. I'd consult a lawyer or at least an insurance agent, to be sure.

Because anybody can sue anybody, which is why waivers don't work in IL, you're never really released from liability.

I agree. Based on what I've been told, I wouldn't even bother with trying to get people to sign waivers, unless you want to use it a psychological ploy to discourage lawsuits in the event of mishaps. No doubt that's why we're asked to sign most of the waivers presented to us, but anyone with a serious injury and a decent lawyer will quickly learn that, in Illinois, they're not worth the paper they're printed on. Anyone who knows the specifics of Illinois law on this, please correct me, but as I understand it, Illinois is one of those states in which waivers are essentially meaningless and unforceable, inasmuch as, no matter what kind of waiver someone tries to press upon you, you cannot sign away, in Illinois, at least, your right to redress in case of injury, whether you show up to run in a marathon, swim in a lake, march in a parade, put your kid in a summer camp, spend a day picking berries, or anything else.

I'm upset. Now State Farm wants almost $600/year for the umbrella, and adjustments made to my car policies (ie more money). I think I need to go insurance shopping.

I'm still upset here. Does anyone have a business that they are running from their home where they have an umbrella policy and a teenage driving son/daughter? I'm ready to open for berry picking, but still no insurance policy. Suggestions?

razbry- I feel your pain here. $600 is a lot for an umbrella. You have now disclosed to them that you have a small business there, so they have made the adjustment, rather than just adding an umbrella to a homeowner's or auto policy. Insurance companies are tricky in a lot of ways, they never want to miss premium opportunities. Your teenage driver is a big liability. Even if your teenager didn't have a license and didn't drive, you will still get charged for him living in the house. In the state of IL, the policy follows the car, and just knowing your kid could get the keys drives up that premium. Time to do some insurance comparing. Allstate, Liberty Mutual, Farmer's, just to get you started sell all three policies. I'm surprised that nobody on LTH sells insurance.

nicinchic wrote:razbry- I feel your pain here. $600 is a lot for an umbrella. You have now disclosed to them that you have a small business there, so they have made the adjustment, rather than just adding an umbrella to a homeowner's or auto policy. Insurance companies are tricky in a lot of ways, they never want to miss premium opportunities.

Of course, not disclosing you are running a small business and have a teenage driver, then making a claim is insurance fraud (rate evasion at the minimum), so either way you've got to pay the piper. It's just a fact of doing business.

Amica is another company offering all three types. Amica has delivered excellent service on three occasions when I needed them: a burglary (back when I was single and had renter's insurance), a fire three years ago and a flood two years ago. All bad events... but the response of Amica was superb all three times.

I wonder if you could get car and homeowner's insurance from one carrier, and the umbrella from another...provided you disclosed everything, that might get you a better rate even if the individual policies are higher. At least it might pit one company against another.