I am not a lawyer and I strongly advise all questions you have surrounding this subject be presented to a competent attorney.
The intent of this article is not to scare you (well, maybe a little), but to inform you. As you are well aware, lawsuits are real and happen every day. Despite this, people purchase private property every day. They do this knowing full well a stranger only need walk onto their new property, then consequently stumble and fall easily inviting a lawsuit. The point is, no one would ever build anything if our sole focus were on being sued.
Unlike hobby welders, independent welders and owners of welding shops have a lot to be responsible for. They must provide great welding services at a reasonable price. And, be able to turn out products or repairs within a reasonable amount of time. Their employees must be well trained and in some cases, they must be certified. In addition, a prudent independent welder or shop owner knows their business assets need to be protected. And one way they do this comes in the form of liability insurance.
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Are there circumstances under which a hobby welder could be sued?
Of course, anyone can sue you for just about any reason these days. That doesn’t mean they have a chance of prevailing. Unless the case actually has merit. However, as a defendant, you must defend yourself from all lawsuits. This usually entails retaining the services of an attorney. In other words, it will cost you financially no matter if you win or lose the case. The unknown is, how much is it going to cost you?
What are the potential circumstances I need to consider?
If the projects you work on will never leave your property and will never be used by anyone but you, you probably don’t have much to be concerned about.
As with installations, creations or repairs of any type, if it fails in some manner and a person or people are injured, a liability claim from the injured party or parties is almost to be expected. The same can be said even if only property is damaged.
As a hobby welder, you still need to manage potential risks. First, identify when your projects may impact the public negatively. That is, if the project or repair of a piece of equipment you worked on, were to fail.
What if something I build or repair breaks and injures or kills someone?
A prudent person will reduce their exposure to liability claims through risk management. So, what exactly is risk management?
In layman’s terms, one form of risk management might be considered simply as calculating the odds. So ask yourself questions. Questions like, What if that trailer hitch I repaired or built breaks while being pulled 70 mph down a busy interstate? Or, what if the spare tire rack I built on the back of my buddy’s 4×4 breaks causing the tire to fall off and go through the windshield of the following vehicle?
If the material used is adequate, the design is good and the quality of the welds are good the chances for failure are probably low. Notice that I did not say the chances of failure are zero. Having said that, if your work fails in some way, what are the chances of it happening at a time when it could potentially impact the public?
Everything we do in life has risks. What we do to minimize those risks is another form of risk management.
What would happen if an affected person sues you in Court for negligence, claiming damages? Independent welding shops developing and marketing their own products are widely exposed to welding-liability lawsuits. If that shoe fits you as a hobby welder, please consider the risks involved. Be exceedingly cautious with items used for lifting and for transportation.
Unexpectedly, production items from big manufacturers can and do occasionally fail. Even if the likeliness of occurrence is one in a million the business must consider that possibility. Because the plaintiff’s actions will be based on making the manufacturer responsible for whatever damages stem from that one-in-a-million failure.
Welding-liability trials can be exceptionally expensive and are brought to the Courts by the plaintiffs. Their intent is to evaluate the manufacturer’s culpability of a defective device, suspected of having caused an accident.
Records indicate that Courts judging manufacturing and welding liability cases can be extremely harsh when considering complaints.
How do I protect myself?
It is safe to say that no one can be fully protected against liability lawsuits. Time spent focusing on where the biggest exposures are is the best place to start. Let’s begin by asking and answering a couple of questions pertaining to projects that could impact the public if they were to fail in some way.
- have the proper amount of training and experience to tackle this project?
- possess the right equipment to do the job adequately?
You should not do the job if the answer is no to either of the above questions. If the answer to both is yes, let’s ask a few more questions.
- the item or implement was to fail, what is the most harm it could do and what are the odds of this happening?
- the item or implement was to fail, what is the least amount of harm it could do and what are the odds of this happening?
Depending on the odds calculated for each question, you may want to either:
- forgo the project
- proceed with an abundance of caution after purchasing some liability insurance
- do the project with a high degree of confidence that nothing negative will happen.
Feel comfortable that there are many circumstances when the last answer is correct. Again, I am not an attorney and you should always seek professional advice regarding protecting you and your family.
What do big manufacturing businesses do to protect themselves?
Each business will have its own unique plan. Some of the potential plans might first incorporate designing a particular course of action and then implementing that course of action to a tee.
The course of action might include:
- seeking the advice of specialists to assist in capturing all precautions necessary to minimize legal action for negligence.
- checking for applicable code requirements for the manufactured item with the assistance of a lawyer with experience in technical matters and possibly an engineer. Their conclusions should be documented and signed.
- involving a Certified Professional Engineer to sign off on all calculations, drawings, materials, and processes.
- documenting the manufacturing process, materials used and the welding process.
- performing and documenting initial tests of the product and ongoing quality control procedures.
- sending a sample of the finished product to Underwriters Laboratories to have it officially approved. While expensive, the advertising advantage of an independently qualified endorsement may be worth it.
- writing instructions for the end user, using plain words describing the scope of its function and the correct way to use it.
- attaching a plate in a place easy to see, warning of the limits of the item’s construction. Such as maximum load ratings.
- seeking comprehensive insurance to protect against liability claims.
- hiring an external agency to audit the product and the production processes regularly.
Always seek professional advice, stay safe and Marry some metal today!