CHAPTER 9 Waivers

A waiver is a contract that the client or their legal guardian signs promising not to sue the studio for the physical and emotional damage that may result from a tattoo or piercing. Waivers are critical in protecting artists and shop owners from customer regrets. Several things come into play when creating an adequately drafted release form. Again, forget about the idea of working with kids and friends. Doing that makes these waivers into raw materials for paper airplanes. 

State, country, and city regulations should be the first test of the validity of a waiver form. Again, the capacity of the person signing the release is of utmost importance. The simple fact that you ask a client to sign a waiver can discourage many clients from taking their artist to court. Also, a client who goes to a lawyer will find that most lawyers won't even take the case if a signed release form is involved. However, I want to emphasize the word "most" here. A determined lawyer can make a waiver null and void; legally speaking, a release does not suspend a professional provider's duty to exercise care and diligence. 

Negligence, if proven, is still negligence, waiver or not. In practice, what a waiver mostly does is (1) ensure people think about what they are getting into, at least a little, and (2) tend to discourage them from pursuing legal action, even if action is warranted, because they believe they have already forfeited that right by signing the waiver. This does protect the artist in a way. 

The emphasis here is on the fact that waivers are not ironclad. Artists should not feel immune to lawsuits because a waiver has been signed. Sloppy or dangerous work, notwithstanding the poor word-of-mouth advertising it causes remains litigable. This point is addressed more below, but it helps to state it here. 

Make sure your waiver is well-rounded and edited by a  professional. This way, if some hotshot lawyer wants to take the case, you have covered your ass. Writing an overview of United  States law is outside of the scope of my practice. Get a local lawyer to review anything you tell anyone to sign. This can cost up to $120 per hour, so new artists might be tempted to skip it,  but I must stress that this expense is necessary. 

Otherwise, you can deal with cyber alternatives. In the  Internet age, some prefer to find someone else's waiver online and use that. Go to our site to see some examples of these. The disclaimer, of course, is that the document is provided as an example only and is not meant to be taken as a legally airtight waiver. Always make your waiver applicable to the specific laws governing where your shop is located, but if you're opting to go it alone without a lawyer, understand that this may not be any protection for you. Some states hold body artists to a more rigorous standard than do others. 

A lot of what I know about waivers I learned from bmezine. com, a pioneer in the body mod cyber scene. Many states, cities,  counties, and local provinces now regulate tattooing and piercing in some way, so getting a copy of their statutes would be good. These laws are not set in stone; they are subject to change at any moment. Body art, as a profession, has attracted the attention of the elite and motivated them to do what they do best—enforce more effective regulations and restrictions on us. Codes vary from rules restricting who may do what works on what person and where to zoning laws on where your shop may be located. This chapter can go off course when we start talking like this, so suffice it to say that you get positive results by countering any attempt at increased regulations and restrictions before they become official.

Again, if you decide to tattoo some drunken reprobate with a portrait of David Carradine, don't get mad if he sues your ass when he sobers up. And if you don't have waivers in all of the main languages in your area, understand that a waiver may not bind someone who speaks fractured English in that language. 

Photocopy the client and guardian's IDs. Next, attach the  ID to the copy of the release form and keep it on file for years to come. You are legally obligated to retain records—for businesses in general, typically seven years. Courts are divided across the  U.S. on whether to enforce waivers signed on behalf of minors. 

It is also wise to give customers written instructions on aftercare and require them to sign separate receipts proving receipt of these instructions. Regarding lawsuits, paper trails are the most valuable resource and protection. Courts tend to respond best to things that are documented. A huge red flag for people who live to sue others is the attorneys' fees provision in waivers that mandates the loser in any litigation to pay the other side's attorneys' fees and costs. 

You'll want a host of specific provisions with concrete worded language. Still, don't think these forms will completely cover your ass. It is your job in your shop to institute your procedures for all employees to follow and to assure that everyone is following and executing, to the tee, the laws to which you are subject. 

Also, waivers don't always cover illegal activity. That applies to the clients too. How will someone sue you when both parties did it unlawful, to begin with? This was my rationale for robbing drug dealers and thieves … but that's beside the point. I've heard of lawyers telling clients to have a document for people to sign as a formal admission of breaking the law. This is a darker side to our legal rules—yet it's a side that has opened up doors that would otherwise have remained closed to this day. But we don't endorse that kind of stuff, do we?

I've heard news reports of a man who broke into a business to rob it, slipped and fell, and successfully sued the company. The legal principle here seems to be that even if what one is doing is illegal, this does not suspend the business person's duty to be careful and diligent. As far as hanging on to these thin slivers of evidence, a.k.a. waivers, keep them filed away until the statute of limitations for any potential lawsuit has expired in your state. Forms are your first defense, but remember, kids, insurance is what every business needs. If shit happens and you don't have insurance, well, stay optimistic. There are some well-respected clinicians like Patch Adams, the medical doctor. He never carried medical malpractice insurance, and it worked fine for him.