Responsibility Run Amok

Headnote (not footnote): The analysis of the contract shown below is, for the moment, still accurate, or as accurate as I know how to make it. But today I spoke to an individual at the City Attorney’s office who seemed to be more than willing to make changes in the contract. So for now, I’m very optimistic. To continue where we left off:

Two weeks ago I wrote about being asked to sign a contract that included an indemnification clause. I would have been required to sign this contract in order to be allowed to teach cello at a local music studio. I said no, thanks.

Today we have an even more amazing example of creeping indemnification.

I contacted the local library and volunteered to give a free 90-minute presentation to interested library patrons on the subject of interactive fiction. The librarian in charge likes the idea. She sent me two pieces of paperwork to fill out and return. One is a simple equipment checklist; the other is entitled “Hold Harmless.” (Ominous rumblings in the timpani.) Here’s the text of the latter document, in its entirety:

“The undersigned shall defend, indemnify, and hold harmless the City, its officers, officials, employees, agents, and volunteers from and against all claims, damages, losses, and expenses, herein, caused in whole or in part by any negligent act or omission of the undersigned or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the negligence of the City, its officers, officials, employees, agents, or volunteers.”

Below this text (which was pasted into the .doc file as a graphic, so that it can’t be edited, thereby saving them, I suppose, the trouble of having to proofread it to make sure the signer didn’t try anything sneaky) is a space for my signature.

By doing a little research online on indemnity and contract law, I was able to spot ten or twelve separate problems in that one seemingly simple paragraph. And it was given to the librarian, for her to pass on to prospective volunteer presenters of free (that is, unpaid) programs, by the City Attorney’s office.

The individual I spoke to today (Sept. 22) said, in the course of the conversation, “That’s a standard form. We’ve been using it for years, and no one has ever asked about it before.” What I didn’t say to him, because he seems a very nice, reasonable person, was, any time someone in an attorney’s office says the language in a form is “standard,” check your wallet.

The biggest problem with this contract is so huge that I read the document a dozen times before I noticed it. Have you spotted it yet? The difficulty is that the name of the City in question is not mentioned anywhere. And the contract is not printed on letterhead, so there isn’t even an implicit definition of the term “City.” Are we talking about Pasadena? Schenectady? Maybe so.

The second problem is that the contract fails to set forth the framework (a single 90-minute presentation, on the library’s premises) during which a “negligent act or omission” on my part would create liability. In the absence of such an explicit framework, it appears to me that the contract would bind me 24 hours a day, 7 days a week, in perpetuity. If I fail to mow my lawn next summer, that could constitute an omission within the meaning of this contract.

I’m not a lawyer, of course. I could be wrong about that. But if I have to pay a lawyer a couple of hundred dollars in order to understand the “forms” I’m being asked to “fill out” in order to do a free (that is, unpaid) presentation, why on Earth would anybody ever volunteer to do anything for the library?

The third problem with the contract, and it’s almost as big as the first two, is that it fails to specify what my duties will be during this 90-minute presentation. That being the case, what would constitute an “omission”? What if I fail to explain non-Euclidean geometry during the presentation? Would that constitute an omission? Your guess is as good as mine. Or, more to the point, the contract doesn’t tell us. It would be up to a judge and jury to decide what I ought to have been doing during my presentation, and they would have to use an Ouija board for the purpose, because the contract would give them no guidance.

Next question: What is a “volunteer”? I’m being asked, you’ll note, to indemnify the City for claims that might be made against volunteers. I think I can probably figure out, in a legal sense, what a City officer or official is, but is there a legal definition anywhere of who is or is not a City volunteer? I don’t know. If someone goes into a restroom in the library, notices a used paper towel on the floor, and puts it in the waste bin, are they a volunteer in a legal sense? Perhaps so, perhaps not. I don’t know what the legal threshold of volunteer activity is. So I’m being asked to indemnify an anonymous and amorphous group of people. That’s not the sort of thing a well-drafted contract does.

Does this contract require that the City notify me in a timely manner of any claim against which I may be indemnifying them? No, it does not. They could settle the claim out of court without bothering to notify me. Fortunately, the person I spoke to today seems quite willing to add a notification provision.

Does the contract require that the City officers and officials provide a vigorous, active defense against any such claim, or cooperate with me if I should feel the need to prepare a defense? No, it does not. They could stonewall. They could write some insane library patron a check for $100,000 just because it was too much trouble for them to do anything else — and it would be my $100,000. I haven’t raised this question with them yet; it remains to be seen how they’ll respond.

Now, let’s suppose, as bizarre as it may seem, that someone decides to sue me as a result of something bad that happens at my 90-minute presentation on interactive fiction. And let’s assume further that this bad thing (whatever it is) was actually caused, in whole or in part, by the negligent act or omission of a City officer, official, employee, agent, or volunteer. Does the contract indemnify me against this malfeasance on the part of a City person? No, it does not. The indemnification is entirely one-sided. I open my bank account and say, “Here — want some money? Take some. Take as much as you like.” The City, for its part, snaps its pocketbook shut and says, “Nope, not a dime of our money shall come your way, not even if it was a City employee who screwed up and some silly person sued you on account of the screw-up.”

Leaving aside the minor issues with the contract, let’s look at one last biggie. It’s a reasonable bet that the City has liability insurance, which would kick in in the event of a claim against the City by a third party based on that individual’s idea (wacky or well-founded) that a City officer, official, etc., was negligent in the performance of duties. So why is my 90-minute volunteer presentation not covered under the City’s liability insurance policy? Or is it? I don’t know.

It’s at least open to speculation that by signing this contract I would be letting the City’s insurance underwriters off the hook. If a claim were filed against the City for alleged negligence on my part, my bank account would then be the first thing the claimant would be able to seize; the insurance policy, assuming it exists, would come into force only after I went bankrupt. I don’t know that that’s the case, but if we assume the City has a general liability policy — and they certainly should — it’s arguable that the settlement of a claim based on the negligence of an unpaid volunteer (i.e., me) should be apportioned in some equitable manner between said volunteer and the City’s insurance underwriter(s), not foisted off entirely on the unpaid volunteer.

Sometimes I wonder why I waste time on stuff like this. Oh, wait … it’s because I genuinely want to share my enthusiasm for a cool and creative hobby with the folks in the town where I live. It remains to be seen whether the City will be able to figure out how not to squash that.