Is an automatic waiver of liability legal?

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Is an automatic waiver of liability legal?

I’ve seen disclaimers in company’s policies that by purchases you are thereby agreeing to their terms of service, and part of that includes you agreeing that the company is not liable for any injury from/by the products. Is that legal? Would it hold up in court? If so, what sort of lawyer would you need to draft such claims?

Asked on January 16, 2015 under Personal Injury, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

It *may* hold up in court. A liability waiver is generally enforceable, within limits: that is, while a customer can waive the right to sue or recover damages from ordinary use of a non-defective product, a waiver cannot protect against liability from incorrectly or dangerously designed or manufactured products.

However, to provide even that level of protection, the waiver must:

1) Be very clear and unambiguous in its language, since ambiguitgy will be interpretred against the party which wrote the language;

2) Must be prominent, so that it is clear that the customer read, or reasonably must have read, the waiver--liability-waiver terms (which, while enforceable, are disfavored by the courts) that are hidden or obscure will not be held to bind people who would not reasonably be considered to have seen them; and

3) The customer must have reasonably seen and agreed to (even if only implicitly, by going ahead with the purchase) the waiver *before* buying the item--people are not held to terms they did not agree to in advance.

An attorney who drafts contracts, especially contracts for consumers, should be able to help you.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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