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Another exculpatory clause case
February 19, 2019
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Another exculpatory clause case
            Plaintiff, a lady who worked at a hospital, accepted a massage from a company offering free massages to the hospital employees.  The chair Plaintiff was sitting in, getting the massage, collapsed and she suffered personal injury.  Plaintiff signed a contract with the following exculpatory provision:
            “You understand and voluntarily accept any risks of which you have been advised about associated with your massage, or from any use of the company's facilities, and hereby release Massage Envy (including its employees, practitioners, agents, and insurers) from all liability for any injury, including, without limitationpersonal, bodily, or mental injury, economic loss or any damage to you resulting there from. You further hereby release all of the foregoing personnel and entities from all liability arising from such injury or damage resulting from your failure to disclose any pre-exiting condition, limitation, or specific sensitivities, or your failure to inform your therapist of any discomfort during the session.”
            The lower court held, and the appellate court in Ohio affirmed, by holding that the word “facilities” included the massage chair.  
            Why is this case so interesting to the alarm industry? Because it involves personal injury, not damage to property or loss of property. 
            In the alarm – security - fire industry you are exposed to all kinds of potential damages including property damage, property loss, personal injury and death.  You can’t take the chance that your contract is not worded properly.  By properly I mean in such a way as to cover every potential type and kind of exposure that may be common to all contractors and unique to those engaged in the alarm – security – fire alarm industries.  Contractual protection from claims runs to the heart of your entire operation, because without contractual precautions you will find it difficult, if not impossible, to get an insurance company to insure you for a reasonable premium, to get a reputable Monitoring Center to monitor your accounts, to get subcontractors to work with you and finally, to get someone to buy your contracts when you are eventually ready to sell.  It should be clear to you.  You should have knowledgeable counsel available when you need legal advice [see our Concierge Program] and you should be using the most Standardize Contract forms in the alarm industry,

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
516 747 6700