For my first substantive post, I picked a doozy of a topic. LIABILITY. So bear with me.
A part of a transactional lawyer’s job is often to sit down and think about all the things that could go wrong in any particular situation, and then draft a contract that addresses these possibilities and then ways to protect their client from damage or liability if any were to happen.
So, as a photographer, what exactly can go wrong in the course of dealing and providing services to a client? Think about your own photography business and what you deal with on a day-to-day basis and what could go wrong during that time?
I am a newborn, child and family photographer, so here is my list of what can go wrong on a daily basis for me:
Maternity Session: Mom-to-be steps in a hole and falls, twists her ankle. Or, she falls or strains while laying or leaning on a tree limb and has to be put on bed rest. Or, the chair that she’s sitting on in a beautiful field breaks or sinks into the soft ground because it just rained and falls backwards. She then has trouble getting up from the ground and tears the placenta, which could lead to horrific situations. Ok, this is extreme, BUT who’s to say it couldn’t happen?? Or, even simpler, what if Mom gets over heated because you live in a warm climate (like I do, I’m in Florida) or it’s the height of summer wherever you are, and has to go to the hospital for fluids.
Newborn Session: Now, unless you’ve been living under a rock or are oblivious, you know that newborn safety has been a huge topic as of late in the photography industry. There are numerous blog posts and forum topics dedicated to this issue. The issue is that many people are joining the world of “professional” newborn photography without having the proper experience, training, and without knowing how to create most of the beautiful images they see from the industry’s heavy hitters, not knowing they are composites (chin in hands pose, any hanging pose), or that an assistant’s or mom’s hand is cloned out, among other techniques, and therefore putting the baby at risk.
Without belaboring the topic and issue (like I said, there’s a lot to read out there), here’s a list of things that I came up with for what can go wrong: Baby falls while you’re attempting a hanging shot or baby is laying on top of a stool or overturned wooden crate. Baby is overheated or gets burned from the space heater or heating pad and requires medical attention. You scratch the newborn with your fingernails, rings, jewelry, or embellishments on your shirt and the scratch bleeds or later gets infected. The newborn’s umbilical cord gets pulled out and bleeds from a blanket, prop or wrap, and then later gets infected. Loss of blood to a limb due to improper placement of feet/legs/arms /hands, in a prop or wrapped too tight. You are sick or your children are sick and you bring it to the studio or your client’s house and the newborn gets sick and requires hospitalization.
Child/Family Session: You’re in a beautiful field (again – these beautiful fields freak me out!) with tall grass and a snake (or spider) bites one of the kids and God forbid it’s actually poisonous, but even if it’s not, what if the bite late gets infected, let alone the trauma a young child could face from this. Again, what if the kids are up on a low tree limb and falls and breaks an arm/leg? (As a side note, there may be some liability on the property owner’s part, but it depends on a number of things, like if you’re trespassing or not, if the property is owned by a municipality (city), if you or the owner was aware and/or failed to warn of certain dangers, etc. – the law is tricky here). Or what if a 6 month old is sitting on an adorable old vintage chair and isn’t being spotted and falls off, hitting her head?
Labor & Delivery/Birth Session: I don’t shoot labor & delivery, but I was chatting with a fellow photog who does and she mentions that she’s sometimes paranoid about tripping and falling and pulling out an IV or anything else the mom is attached to. Think about it, you often walk around, or take a step forward or backwards all while having a camera up to your face, making sure you don’t miss a shot. So it’s not too crazy to think you could step on something unintentionally. Also, what if you’re up by Mom’s head while she’s delivering and you drop the camera on her head, or it slips out of your hand from sweat and/or excitement and she passes out?? Again, extreme, but what if??
High School Seniors: Again, I don’t shoot high school seniors, but what if your senior is a ballerina and she wants to do some jumps in her images and you guys are shooting outside and she comes down on her foot wrong because of a rock that’s in the way . . .
Before you have a chance to back up your images, your computer crashes and you lose all images from the session never to be replaced.
Your memory card is corrupt and you can’t even upload the images to your computer, and after you tried a recovery service, you still can’t get them, again, lost forever.
Your camera gear and/or memory cards are stolen and burned in a fire, etc. again, the images are lost forever.
So what can we do to protect ourselves? An exculpatory clause is a clause in a contract that attempts to eliminate or limit the liability of someone (here, you). These types of clauses include disclaimers, assumptions of risk, and releases or limits of liability. Now, for clarification, when I say “release of liability” that means that a clause is drafted so that one party (you) is not liable for anything to the other party (your client) if certain things were to happen, whereas a “limit of liability” means you (the photographer) would be liable to the client under certain circumstances, but only up to a certain dollar amount (which is usually the amount paid under the contract for the services and/or products provided). In a personal injury situation, an exculpatory clause attempts to deny an injured party the right to recover damages from someone who’s negligence caused the injury. (Again, most of the examples of what can potentially go wrong written above were personal injuries to clients).
Well, here are two issues. One, there are a ton of photographers who don’t use written contracts when providing services to clients, so there’s no protection at all and they’re open to all sorts of potential liability. But second, even if you do have a contract, does it contain an exculpatory clause? And if it does, is it worded properly to protect you?
Because here’s where it gets tricky: to be enforceable, the clause must be written in a specific way and include specific language. For example, in Florida (and the law regarding this topic will vary from state to state; I’m in Florida, so I’m familiar with Florida law), although these types of clauses are generally disfavored by the courts, they can be enforceable if they are clear and unambiguous. This means that the language is so clear and understandable that an ordinary and knowledgeable person would know what he was contracting away. Further, the language in the contract should be bolded, italicized or in call caps so as to not be hidden in the rest of the contract language. And regarding the issue of negligence, most of the things that can go wrong listed above are personal injuries likely the result of negligence (it was allegedly negligent of you to have a baby on a chair w/out a spotter, etc.). If a clause attempts to limit or exhaust liability for your negligence during a shoot, it should specifically refer to and use the word “negligence.” So if a clause simply refers to “all liability” or “liability based on the failure to provide the services” without specifically listing claims based in negligence, there probably isn’t any chance of protection from a client’s personal injury based on your alleged negligence.
Even then, in some circumstances and based on reasons of public policy, a court won’t always enforce it, and this could be in the situation of a parent waiving the rights of a minor.
And even further, I wouldn’t be surprised that if a newborn is seriously injured during a session, that those parents will sue you regardless of what your contract says and it would be up to the court to make a decision about whether the clause is enforceable. The bottom line is that you can be sued regardless of what your contract says, and there is no guarantee that the clause will be enforceable. BUT, it’s better to even have something, than nothing at all.
In summary, the purpose of this post is not to scare you (well, maybe a bit, maybe to scare you into making sure you are properly trained before attempting certain things with clients, especially a newborn or child session). There is such a rush in this industry to come up with something new, something different, and to race to the top without taking the time to learn appropriate technique and without taking into account that there are potential liabilities that go hand-in-hand with running a business.
The purpose of this post is for educational purposes, because knowledge is power, and to run a successful business (any business) the more you know about things that benefit you, as well as things that could harm you, the better off you’ll be.
Please remember that this is a very general overview of the concept of exculpatory clauses in contracts and how a photographer might be liable to his/her clients. The form agreements offered for sale here do include a limitation of liability clause and it does include language regarding the negligence of the photographer. However, as stated above, you can be sued whether you have a contract or not, regardless of what that contract says, and there is no guarantee that a court will enforce an exculpatory provision due to public policy or other concerns. I urge you to speak to a lawyer in your state so that you can be advised on the laws of your state and your particular business situation.
DISCLAIMER: The information provided on this site is general legal information solely for educational discussion. CreatePro Legal Forms is not your attorney and the information contained on this site does not constitute legal advice, nor is it a substitute for legal advice. Your reading or use of this site does not result in an attorney-client relationship or privilege of any kind. CreatePro Legal Forms urges you to contact an attorney in your area so that you can be advised on the laws of your state and your particular business situation.