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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 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.


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