Introduction to Liability

The “Introduction to Liability” web page is intended to give the reader a quick glance at some of the more important liability issues facing an AgrAbility professional. You may also wish to review the Liability FAQs. For more detailed and thorough liability information and discussion, please refer to the Liability Training Module, speak with your local Extension Agent, and/or seek legal counsel.

Liability

Liability is all about managing risk. When working as an AgrAbility professional, you must be aware of both “professional” and “product” liability and/or risk. You should also understand that the agricultural industry is inherently risky. There are products that may pose a liability issue for the farmers and ranchers with disabilities that AgrAbility professionals work with, as well as practices that pose professional liability risks for AgrAbility staff. The more you understand your role as an AgrAbility professional, the better you will become at managing and minimizing your liability or risk.

Managing Liability or Risk

One of the best ways to manage or limit your liability or risk is to never practice outside your educational or “experiential” role. Professional engineers are trained to perform engineering tasks such as product design and product safety, while not necessarily understanding all the issues involved with an injury that limits one’s range-of-motion. Likewise, occupational therapists may have training that is focused on understanding human body mechanics such as range-of-motion, but do not have a strong background on engineering topics like the strength of materials. Working within the knowledge of each professional and using a team approach will result in more complete farmer or rancher assessments, improve outcomes and better manage personal/professional liability or risk.

Whether working as an individual or as a team, documentation is also very important. In daily interactions as an AgrAbility professional, maintaining and providing proper documentation and explaining the safe and thorough operation of any new products you may recommend are critical steps.

Finally, another more common way to manage liability or risk is to pass it along to some other person, group of people, or company. This is referred to as “insurance.” You may wish to check with your professional organization (e.g., nursing, professional engineering, occupational therapy, etc.) regarding personal professional insurance.

Professional Liability

Based on your education or licensure, you may already be held to a very high standard of professional liability. Most professionals working in a field where assisting or working with individuals is common (e.g., nurses, doctors, engineers, etc.), already practice a basic code of ethics “to do no harm.” However, when something goes wrong, and an individual gets injured or has a loss (i.e. bankruptcy), the professional may be sued for malpractice or “negligent care.” Part of the process of proving negligence,” involves a series of steps you either did or did not take, and therefore can vary somewhat depending upon your profession. The best source of information regarding personal professional liability probably exists with your own professional organizations.

Product Liability

Product liability is more common—a topic you’ve heard much more about in newspapers or on television shows. If you produce a product for someone else and that product is judged to be unsafe or defective, you may have a product liability issue. Sometimes proving a product is defective (product liability) is easier and more defined than proving someone was negligent (professional liability).

There are three categories of product liability. The first category involves product design. If the product is defective because it was poorly designed, that can lead to a product liability issue. The second category looks at how the product was manufactured or assembled. If the product is defective because it was assembled wrong, that can lead to a product liability issue. The third category involves product labeling—including any warnings that are necessary and proper instructions to operate the product safely. If the product is defective because labels were missing, or the operating instructions were wrong, that can also lead to a product liability issue. Many times an individual lawsuit may be viewed as more effective when these three categories are lumped together.

How To Protect Yourself

Along with understanding the parameters of your role as an AgrAbility professional, it is recommended that you carry appropriate professional liability insurance, maintain proper and complete documentation, and follow the “safety hierarchy” to further protect yourself and the individuals you are working with. The safety hierarchy is a set of beliefs, values and principles that basically state:

“There are multiple layers or approaches for dealing with safety problems. The ones at the top of the safety hierarchy are best. You don't have to exhaust all the possibilities at the top, but you need to do what you can do, to do the things at the top versus the things on the bottom of the safety hierarchy.”

Below are the safety hierarchy layers or levels:

The first level of the safety hierarchy states if it's possible, you should eliminate the hazard entirely.
The second level of the hierarchy states that you need to add some type of a safeguarding technology. Shields, barriers, or basically mechanisms to control or isolate the machine’s energy and keep the operator/user out of harms way are always good design.
The third level of the hierarchy states that you need to use warning signs, labels, decals, etcetera. While the third level of the hierarchy may not seem significant, a product liability perspective will tell you that you must use warning signs, labels, and proper decals.
The fourth level in the hierarchy states to thoroughly train and instruct the operator/user on how to effectively deal with hazards that exist. This is the level that you would need proper documentation stating the user was trained and instructed on safe equipment use.
And the final level in the hierarchy states to provide or prescribe personal protective equipment (PPE) as necessary or needed.

Resources

The author, Mr. Huitink, addressed professional liability from an engineering perspective because that is his profession and experience. The concepts presented in his two handouts (Microsoft Word documents) are readily transferable by professionals in many fields, and with proper application, are essential for today's educational and service organizations.

Mr. Henry Palmer, is a partner in the law firm of Lawyers PLLC, in Meridian, MS. As part of the Liability Issues presentation he contributed to at the 2006 NTW, he referred to some personal notes and his printed handout. Most of the ideas Mr. Palmer presented regarded issues that SRAP staff may encounter when delivering AgrAbility services, and how to understand and limit their liability risks.

We have included in electronic format (see Word documents below), four sections of Mr. Palmer’s printed handout which pertain to the general liability topics discussed at the workshop. Please note, this information is taken from MS case law, and should not be copied or reprinted from the web site without permission from Mr. Palmer. We have included them here for your information and as a resource.

While reading and studying the content of these documents should be informative, SRAP staff should also seek out and find knowledge-able lawyers in their university, non-profit, or other organizations if they have concerns about the limit of liability coverage in their specific employment situation or state in which they work.

Liability Training Module

References

Hobscheid, Henry M., Dick Moll and Patricia A. Robinson. 2005. Products liability law: What engineering experts need to know. Handbook of Human Factors on Litigation. Edited by Y. Waldemar Karwowski and Ian Noy. Boca Raton: CRC Press.

Moll, Richard A. "Warranty Law and the Service Manager." University of Wisconsin, Madison. Photocopy.

Moll, Richard A., and Diane Lange. "Products Liability and the Design of Farm Equipment." Paper presented at the winter meeting of the American Society of Agricultural Engineers, Chicago, IL, December 1985.

Richardson, Jr., Jesse J. Liability and Insurance. Virginia Department of Agriculture and Consumer Services, n.d.