Test Yourself: Analyze this Waiver Case and Predict Whether the Waiver Protects

By Doyice Cotten

3538810339_f2325235c1_zPlaintiff Asabi L. Barner Jackson (Jackson), who lives in South Carolina, chose to have Black Ink apply a tattoo, based upon a reality TV series in which Black Ink allegedly represented itself to specialize and be experts in tattooing African American skin (Jackson v. Black Ink Tattoo Studio, Inc., 2016).

Jackson claims that she has permanent injury to her left breast. She says there is “deep tissue damage and a very large, thick, raised keloid scar on my left breast, which constantly burns and itches, and significantly affects my daily life, including the clothes I am able to wear each day, as well as my intimate relations.”

She states that minutes prior to receiving the tattoo, she was required to sign a waiver, was not given a copy to keep, and no one signed as a witness. Further, she maintains that she was not informed of the risks, nor that she was accepting the risks of an inexperience and careless employee; also she did not realize she was relinquishing the right to sue even in the event the employee was careless or negligent. She alleges 1) that defendants were negligent and reckless in applying the tattoo and that 2) they were negligent in ot securing Jackson’s informed consent before applying the tattoo.

She further maintains that she was never informed that she was accepting the risks of an inexperienced and careless employee, nor did she understand that she was waiving any right to sue defendants in the event that they were negligent, reckless or careless. Jackson alleges that she told Brian that certain light colors do not show up on her dark skin. Brian responded that he has expertise in all colors. She states that she observed [*2]  Brian work on an area where he used white ink for a longer period of time than areas where he used other colors. Jackson alleges two causes of action that: (1) defendants acted either negligently, recklessly, or carelessly in applying the tattoo; and (2) defendants acted negligently in not securing Jackson’s informed consent before applying the tattoo.

As Jackson acknowledges, she initialed each paragraph of and signed a waiver before obtaining her tattoo. She does not dispute Black Ink’s assertion that it requires all customers to review and sign a waiver before receiving services.

The pertinent parts of the waiver provides:

I have been fully informed of the inherent risks of a tattoo or piercing, including infection, scarring, allergic reactions to latex gloves and/or soap. Additional risks for a tattoo include difficulties in detecting melanoma and allergic reactions to tattoo pigment … Having been informed  of the potential risks of a tattoo or piercing, I still wish to proceed with the tattoo or piercing application, and I freely accept and expressly assume any and all risks that may arise from tattooing or piercing.

I  waive and release, to the fullest extent permitted by law, Artist and Studio from all liability whatsoever, for any and all claims or causes of action that I, my estate, heirs, executors or assigns (“Additional Releasors”) may have for personal injury or otherwise, including any direct or indirect damages, that result from the tattooing or the piercing, whether caused by the negligence or fault of Artist or Studio. (Emphasis in original).

Appearing just above the signature line is

“I acknowledge that I have read this Consent, that I have executed this Consent voluntarily, and that this Consent is binding upon me and the Additional Releasors.”

Actions and Claims

Defendants moved for dismissal based on the signed waiver of liability.

Plaintiff contends:

1.      That the terms of the waiver are not specific enough to be enforceable under the laws of the State of New York.

2.      The waiver is void as against public policy.

3.      Waivers which purport to exculpate a party from liability for its own negligence are subject to judicial scrutiny and are not favored by the law, and are, therefore, strictly construed against the party relying on them.

4.      Waiver must be expressed unambiguously and clearly, and must also be understandable to the person signing it.

5.      Even though the waiver included the word “negligence,” she was not informed that she was waiving risks due to defendants’ fault, carelessness or negligence in the hiring and/or training of their employees.

6.      The waiver was not specific to the particular type of tattoo and included references to piercings as well as tattoos.

Your Verdict

Now, you have the opportunity to decide whether Black Ink Tattoo Studio is liable for Jackson’s pain and injury, or is Black Tattoo protected by the waiver of liability that Jackson signed. Once you have decided, scroll down to see the ruling of the court.

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The court address many of Jacksons contentions:

1.      Waivers are disfavored by the law. However, they are enforceable if they do not violate public policy and it expresses in unequivocal terms the intent to relieve the defendant of liability for negligence.

2.      The waiver said it applied to any damages, including negligence or fault of the artist and “negligence or fault” was emphasized in bold and underlined.

3.      The waiver did not specifically identify the tattoo, but plaintiff did not provide evidence that a waiver must contain this information.

4.      That Black Ink did not provide a copy of the waiver does not affect its effectiveness.

5.      She claimed that the waiver was contrary to public policy because the State has an interest in the health and welfare of its citizens. Waivers that violate public policy are void; but, a tattoo is no medical treatment and does not implicate health or welfare considerations. The waiver did not violate public policy.

6.      There is no statute requiring the administration of an informed consent (and in any event, the waiver warns of some of the risks, thereby, serving as an informed consent in this case).

Hence, the court ruled in favor of Black Ink and dismissed the case.

Photo Credit: Thanks to Slappytheseal at Flickr.