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The Magic Cafe Forum Index » » The spooky, the mysterious...the bizarre! » » Dangerous Effect Disclaimers.... (0 Likes) Printer Friendly Version

LebanonCircle
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Now this is probably not the most exciting of topics but to anyone who creates their own effects it could come in handy.

Does anyone know or have experience on enforcing disclaimers on potentially dangerous effects? Most effects that involve flash powder, fire or putting razor blades in your mouth contain a certain element of risk. How does the creator of the effect protect themselves against people suing them if something goes horrifically wrong?

We are all aware of how common practice it has become to stick the blame on someone, as the TV motto says "where there's blame, there's a claim"! We all assume that our customers are of a certain level of intelligence but this is not always the case. With people suing McDonalds for making them fat it makes me wonder how long it would be before someone tries it on with a creator of magic.


"Your ouija board resulted in my son being possessed by demons"

or

"The instructions in 'Needle Thru Arm' didn't say not to try putting a real needle through my arm so I gave it a go and I ended up in hospital, therefore this is your fault, PS, it hurt"

I'm releasing a new effect in a few weeks and while it is safe to perform there is potential for something to go wrong (as with most things). I want to protect myself but I also don't want to put people off the effect or make them sign and return forms, tick boxes etc.

Is there anything I can put on the DVD or box to protect my backside should I have a death on my hands??

Any help would be greatly appreciated!

Regards

Dan

Lebanon Circle
Greg Arce
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Quote:
On 2009-05-05 12:18, LebanonCircle wrote:

"Your ouija board resulted in my son being possessed by demons"



Or "Your demon child has now taken possession of my Ouija board."


Anyway, I think that just simple disclaimer stating you will not be held responsible for anyone hurting themselves while trying to do this effect.

Greg
One of my favorite quotes: "A critic is a legless man who teaches running."
Clifford the Red
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"Don't buy this if you are a stupid f---k."

See! It said on the box. It said on the goddam box!
"The universe is full of magical things, waiting for our wits to grow sharper." Eden Philpotts
Harley Newman
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"Buyer assumes all responsibility for using equipment in the manner for which it was designed."
“You can’t depend on your eyes when your imagination is out of focus” -Mark Twain

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LebanonCircle
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Thanks Harley, that's a good one, sums it up pretty neatly.
The Curator
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Please don't read the instructions backwards with a loud voice in a church.
Harley Newman
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You're welcome! If you'd like me to be more specific, PM me the details. I'm glad to help, much as I hate contract clauses.

What you're looking to do is, in effect, establish the fact of a sale, as a contract. You can state the terms on the product, or it's promotional website, as you might see on the site of the Black Hart (which has a couple of nice terms).

You could also require each buyer to send you a signed agreement, along with the payment.

Selling through dealers might be difficult, if you want paperwork. But putting the disclaimer on the package helps. You should also put it at the very top of the instructions, in a noticibly different font and type size.
“You can’t depend on your eyes when your imagination is out of focus” -Mark Twain

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Roni
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The purchaser alone is totally responsible for all eventualities or accidents arising from the use of this prop (Name of Prop).
The creator of this prop (Name of prop)will not be held responsible for the purchaser negligance or improper use of this prop or any accident or damage resulting from the use of this prop
Cheers
Roni
kaytracy
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Sounds like a legal consult would be advised to insure correct wording, and be sure you know what part of the legal codes to cite if someone does try to sue. There is something about one cannot make a dangerous thing "more dangerous" and expect to not be held liable.
Seek out an attorney. If you are that worries, it will be a spot of money well invested. Likely about $200-$300
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ghostgaff
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Yeah, $200-$300 now, or $10,000+ later. You should try to get the wording right the first time or else...
Just look at McDonalds lawsuits, over $50000 for hot coffe! People will sue for literally anything
"The prince of darkness is a gentleman"-
"All the world's a stage, and the people merley actors."-
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A_Blake
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My advice, besides a strong disclaimer, is to get strong umbrella indemnity insurance in the event of any problems with your product. Disclaimers by themselves really mean very little, a good attorney can find tons of loopholes and go after you. And even WITH a disclaimer (or a contract) you can still be sued as you can sue for pretty much anything nowadays. While the suit may eventually be dismissed because of the disclaimer or because of it being frivolous you will still need to lawyer up to fight the lawsuit, spend time in court and it WILL cost you money in the long run (sometimes a lot of money).

The positive? You are based in the UK and while US residents could bring suit against you in the British courts it becomes more difficult and expensive to do so (but not impossible).

If you are to have distributors in the US they themselves can be sued and in turn they can hold you liable. You will need to institute a way for them to be held blameless in handling your product and indemnify them against any litigation and fault (or if they are sued that you will cover their backsides).

The long & short of it -- you can have all the disclaimers & contracts you want but if you're going to be sued, you will be sued. Disclaimers in and of themselves are never strong enough (if you were to make them overtly strong the restrictions would make whatever you're disclaiming impossible to use) and implied or signed contracts will always have loopholes.

Make sure you pay a barrister with knowledge of international indemnity laws to write your disclaimers & contracts. Make sure they are posted clearly on your website, clearly in close proximity to the description of the product, clearly on the label for the product (on the outside -- disclaimers that are within a product and cannot be read/examined beforehand can be legally problematic) and also have a copy within the product itself (ie: in the CD/DVD). DO NOT write the disclaimer or contract yourself -- unless you explicitly know indemnity law then you are being foolish and playing with fire. This can help and protect you to a certain extent, but there are always idiots that will still go after you legally.

Hope this helps...

Success!!!

Tony Blake
Artful Mentalism Events
Bill Fienning
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You can be sued (in the USA) for any reason, or no reason at all. Being sued does not mean that you will necessarily lose, but winning can be expensive. The courts can void even strong warnings and declare product liability.

Beware.
Bill Fienning

"It's More than Tricks"
Jeb Sherrill
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I don't know how it works in the UK, but here in the States, it's a good idea to open an LLC as a wall between you and being sued. LLCs are easy to apply for and work somewhat like a very small corporation. If the LLC is sued, it can go under and not you. It's a good extra line of defense.

Jeb
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A_Blake
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Bill...

Thanks for giving me the word I was searching for as I wrote my post -- "liability" -- that's what you mainly have to cover your rear on... you can be sued by anyone for anything because they think (or you are) liable...

In all cases, especially when products could be seen as potentially dangerous, you need to try and cover yourself for any tortious or delictual liability... to be 100% covered is impossible, even 75% can be problematic...

With the attitudes in the world today, regardless of where you live, any product creator or business owner needs to cover themselves against any liability the best they can -- even more so when the product they are producing could be potentially problematic or dangerous...

By the way, in the event of a lawsuit on the product in question and during the discovery phase of of any lawsuit this thread itself could be used to show that the creator knew that the product was dangerous before they put it out, admitted openly as such and tried to cover themselves with disclaimers, contracts, etc. -- it could be used against the product creator as proof that what they put out was known, previous to release, as potentially fraught with liability problems...

As Eugene Burger has said many, many times "To Be Forewarned Is To Be Forearmed"...

Be careful out there...

Success!!!

Tony Blake
Artful Mentalism Events

PS: BTW anyone can be held liable... even ebook authors that put out card trick books... don't ever think anything you do is safe from someone that wants to go after you...
LebanonCircle
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Thanks to everyone for your help with this matter. It's been enlightening (and slightly scary) and I have been able to decide what I think is the right thing to do.

The strange thing is though that this effect is in no way dangerous to perform, nor is the apparatus dangerous. It just involves an item meant for human consumption that once the effect has been performed is no longer fit to consume. So you can see where my problem lies. It's the performers responsibilty to ensure the consumable item is safely retained and disposed of. The effect will come with a DVD that will have a scolling disclaimer as well as a personal message from myself.

I sure everything will be fine as this is aimed at the pro magician who by and large is intelligent and responsible.

As Bill said, you can be sued for any reason at all so I'm just trying to cover my *** from the outset!

Thanks again everyone!

Regards

Dan

Lebanon Circle
msmaster
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Confessions of a Needle Swallower has a legal disclaimer you must read and click on before you can watch the DVD.
LebanonCircle
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Now that is a good idea, I can build that into the DVD so that you're unable to proceed to the main menu until you've read the disclaimer.

Many thanks msmaster!

Regards

Dan
noble1
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Plus you will love the Confessions DVD, in more than one way it's probably the best one-trick DVD ever.
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