Is a publicly funded agency allowed to put negligence in a hold harmless clause for caregiving?

Our local commission on aging, is tax payer and donation funded. They provide respite care for the elderly. There have been times the caregivers that have come to sit with my mother for a few hours have totally ignored her IE they are texting on their cell phones etc. This almost resulted in a fall. They do have you sign a hold harmless clause every 6 months and the word ‘negligence’ is included in that clause. My question is, if the caregiver is negligent in providing care and my mother is injured, would that clause be null and void, or would it keep me from pursuing legal action against the caregiver whether it be criminal or civil? Since it is a taxpayer funded organization are they even allowed to put negligence in that agreement. Negligence is a criminal act from my understanding, so by signing am I giving them free reign to do what they want without any concern for my mothers safety?

Asked on October 11, 2017 under Personal Injury, Michigan

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

First, negligence is not a crime except in a very few, specific and limited cases (e.g. negligent homicide).
Second, government or publically funded agencies can try to limit their liability. While you are--completely understandably and naturally--focusing on your mother's needs, a publically funded, etc. agency has a broader mission and constituency than any one person, and limiting liability can reduce its costs and risks, and therefore help it fulfill its mission. (E.g. it can't keep providing respite care if sued out of existence, or their insurance cost is too high.)
Third, no one can protect themselves from liability from intentional or deliberate bad acts or from gross negligence/recklessness (exceptional carelessness; carelessness going well beyond normal negligence or carelessly), it is legal to protect yourself from ordinary carelessness: your clients, customers, patients, etc. can agree to accept the risk of ordinary negligence and not sue.


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