As tattoos become more commonplace in our society, so too are the legal disputes that crop up related to them. For example, getting a tattoo can expose you to illness or disease from a needle that isn’t properly sterilized. There is also the risk that there will be a mistake in the style or design of the tattoo. This article will discuss a tattoo parlor’s liability in these situations and others.
The primary legal principle that holds a tattoo parlor liable for injuries suffered by customers is called negligence.
Negligence is a civil law concept that holds people (and businesses) accountable for the unintentional harm they cause to others. To prove negligence, an injured person must show that the tattoo parlor breached the duty it owed to the injured person by not meeting the required standard of care, that there was an injury, and that the breach of duty resulted in the injury.
What is standard of care? Standard of care is a legal term for how careful a person or business has to be under any given set of circumstances. If the tattoo parlor does not meet its standard of care and you are injured as a result, the tattoo parlor may be held liable.
In order for a tattoo parlor to meet its standard of care, at a minimum you should expect:
It can be difficult to prove that a tattoo parlor is negligent because you have to show that, but for the conduct of the tattoo parlor or artist, you would not have been injured. As a result, the tattoo parlor will likely argue that it wasn’t the cause of your injury but that you were in fact responsible, or there was some other cause for what happened.
For example, if you get a skin disease, the tattoo parlor will argue that it was the result of your poor after-care, or that you acquired the condition somewhere else.
A tattoo parlor likely will raise a number of defenses in response to your negligence claim.
Contributory and comparative negligence are legal defenses that a defendant can raise if the injured person’s conduct falls below a reasonable standard of conduct.
The effect of the injured person’s negligence will depend upon the state where the injury occurred. In states that follow the contributory negligence legal theory, the injured person will be completely barred from bringing a negligence claim. In states that follow the comparative negligence legal theory, the amount of damages that the tattoo parlor will have to pay will be reduced by a percentage that is equal to the injured person’s level of fault. (See the law in your state in this chart).
For example, even if you can prove that you actually got an infection from the tattoo parlor, if your after-care conduct was poor, you can be completely barred from bringing suit or your damages can be reduced in accordance with your level of fault.
Signing a waiver of liability can absolve a tattoo parlor of all legal responsibility if something goes wrong. These waivers will usually be upheld, provided they are reasonable and narrowly tailored.
Certain exceptions may exist, however, if the tattoo parlor is especially egregious or if the waiver of liability is too broad. For example, a waiver of liability absolving a tattoo parlor may apply to normal injuries or illnesses or reactions that could occur as a result of a tattoo. If, on the other hand, the tattoo parlor re-used dirty needles and you contracted hepatitis as a result, the court would likely not uphold the waiver because a reasonable person would not assume a waiver of liability would cover such an unusual situation.
Implied assumption of risk is a legal defense that completely bars an injured person from recovery if the injured person voluntarily and knowingly assumes the risks inherent to the dangerous activity in which they participated. Whether or not you assumed the risk will be based on a thorough examination of the specific circumstances under which you were injured. To learn more about what you'd be up against, see Assumption of Risk in a Personal Injury Case.
In addition to a negligence claim, you may also have a claim against the tattoo parlor for breach of contract. The problem with a breach of contract claim is that the amount of damages you are allowed to receive is limited to out-of-pocket losses and consequential damages, or the amount you would have to spend to fix the tattoo or have it removed. However, if you cannot prove negligence, or the tattoo parlor has a valid defense, this may be your only legal option for getting at lease some money for the mistake.