By Doyice Cotten
Asabi Jackson, a black woman, claimed injury resulting from a tattoo administered by Black Ink Tattoo Studio. Prior to receiving the tattoo, she signed a waiver, but claims she was not given a copy and that no one signed as a witness; she further claimed 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.” She contended that she was permanently injured with “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.” (Jackson v. Black Ink Tattoo Studio, Inc., 2016 N.Y. Misc. LEXIS 609)
Causes of Action:
- That defendants acted either negligently, recklessly, or carelessly in applying the tattoo.
- That defendants acted negligently in not securing Jackson’s informed consent before applying the tattoo.
Jackson acknowledged, however, that she initialed each paragraph of and signed a waiver before obtaining her tattoo. The waiver, in part, states:
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 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.
And the following appears in bold type just above the signature line:
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.
Black Ink argued that by signing the waiver, Jackson waived any claim for negligence; further, Black Ink maintains that the waiver included informed consent language.
New York Waiver Law
- Waivers indended to insulate a party from liability resulting from that party’s negligence are disfavored in New York
- When there is no contravening public policy, such waivers are enforceable as long as the language of the waiver expresses in unequivocal terms the intention to relieve the defendant of liability for its negligence.
Court Addresses the Waiver
The Black Ink waiver provided that it applied to any damages, including negligence or fault of the tattoo artist or the studio. In addition, the words “negligence or fault” were underlined and in bold print. Under such circumstances, it is clear that the waiver applied to any negligence of defendants. The court stated that since both “negligence” and “fault” were used in the waiver, Jackson was not required to possess legal knowledge in order to understand that she was releasing Black Ink from liability for acts of negligence or fault by Black Ink.
Copy of Waiver to Client: The court held that Jackson cited is no law indicating that a business must give the client a copy of the waiver. Not doing so has no effect on the effectiveness of the waiver.
Public Policy: Jackson argued that the waiver conflicts with public policy. She maintains the state has an interest in the health and welfare of its citizens; that tattoo studios are under the jurisdiction of the New York City Department of Health and Mental Hygiene; and that they require licensing.
The court responded “that certain waivers can be void as against public policy due to the State’s interest in the health and welfare of its citizens,” but pointed out that such was limited to situations in which the “medical condition of the plaintiff makes enforcement of the waiver unconscionable.” Consequently, there is no public policy reason for the court to invalidate the waiver, and plaintiff is bound by it.
Informed Consent
Plaintiff maintained that defendants failed to obtain informed consent from her; defendant contended that they had no statutory obligation to obtain informed consent, but pointed out that the waiver actually constituted such consent. The court said there is no statute requiring informed consent, but that healthcare professionals have a common-law obligation to obtain informed consent. The court went on to state that plaintiff had failed to supply any authority to show that tattoo parlors and artists are healthcare professionals obligated to obtain informed consent.
In summarizing the point, the court stated that the waiver included warnings regarding the tattoos — “including infection, scarring, allergic reactions to latex gloves and/or soap … difficulties in detecting melanoma and allergic reactions to tattoo pigment.” Further, the court added that Jackson failed to refute defendants’ showing that by such waiver they obtained adequate informed consent from plaintiff.
Ruling
The court granted summary judgment in favor of the defendant.
Photo Credit: Thanks to Cindy Funk on Flickr.