Sosumi...

April 14, 2010 6:29 PM

Can you contract away your right to sue over unrelated future claims in a settlement?

Let's say I punch Person A and then he sues me for damages. Rather than go to court we want to settle. Can Person A agree to not sue me over the punch and other punches which may or may not happen in the future as part of the settlement?

posted by unreasonable to Law & Government (9 answers total)

Best answer: Just as a really broad answer to a really broad question. This isn't legal advice, and I'm not even a lawyer. I'm just answering this as a broad hypothetical. Yes, in some situations, you can contract away your right to sue. You don't even need to do it as part of a settlement, you can do it beforehand.

I'm not sure if you can negotiate away the right to sue for an intentional tort, like a punch. But in at least some jurisdictions, you can contract away your right to sue for negligence claims, and in at least a handful of jurisdictions, claims of gross negligence.

This is called "express assumption of risk", and is basically what you do when you sign a document before you go skydiving, paint-balling, or other dangerous activities you pay to do. Judges won't always enforce these, but sometimes will, depending on a lot of factors, like how explicit the language of the contract was, whether there is disparity in the bargaining power of the parties, whether or not the service being performed has any public value, etc. etc.

A few examples of cases involving express assumption of risk:

Van Tuyn v. Zurich American Ins. Co., 447 So. 2d 318 (Fla. App. 1984)

Manning v. Brannon, 956 P.2d 156 (Okla. App. 1997)

Tunkl v. Regents of the University of California, 32 Cal. Rptr. 33 (Cal. 1963)
posted by HabeasCorpus at 6:56 PM on April 14, 2010

yes. don't do it. if you have done it there might be a way out; hire a lawyer.
posted by caddis at 7:00 PM on April 14, 2010

Yeah, if this isn't a hypothetical question, and actually involves a real life circumstance, you definitely need to consult an attorney.
posted by HabeasCorpus at 7:02 PM on April 14, 2010

Your question straddles two issues: tort and liability and I'm not sure which you are asking about. People agree to not make liability claims for future liabilities against insurers daily, that is, they waive the right to future claims of undiscovered or unrealized damages.

I can't think of an example of waiving a right to sue regarding future injuries you may inflict upon me except in the cases of specific - yet broad - tort reform. For example, in some states people can waive their right to sue for future damages in auto insurance, but again that's liability not tort specifically.
posted by fydfyd at 7:04 PM on April 14, 2010

It's a little askew from your question, but new-car purchases in the USA invariably involve mandatory arbitration agreements, where you give up your right to sue the dealer when you buy the car. This happens before the dealer has punched you even once, though.
posted by adamrice at 7:23 PM on April 14, 2010

Mandatory arbitration, though, does not involve giving up your rights. It involves having a different tribunal hear your claim.
posted by yclipse at 7:25 PM on April 14, 2010

Don't forget that punching someone will probably also constitute assault, which would expose the assailant to criminal charges. There have been instances when clearly consensual assaults (e.g., one that is part of a BDSM act) have been prosecuted.
posted by Joe in Australia at 9:07 PM on April 14, 2010

Even if you do waive your rights, it is still theoretically possible to get around express assumption of risk, that is, sometimes you can still sue them and win, even if you waived your rights before. The waiver is just a contract and a contract/provisions of a contract can be invalidated by a court if they violate laws/public policy/are unreasonable (legally, not just seem unfair). Even if you signed a contract, it can still be found unenforceable. Also, if it was a situation where you contracted not to sue for someone punching you, that wouldn't get rid of any criminal liability that can exist (even if you gave permission, this isn't always good enough to absolve someone of criminal liability for assault or whatever). Obviously is if this is real life and not just a hypothetical, you need to talk to a lawyer and not the internet.
posted by ishotjr at 1:18 PM on April 15, 2010

I guess the last part is what Joe in Australia said, haha.
posted by ishotjr at 1:19 PM on April 15, 2010