Are liability disclaimers ever accepted as a defence, or even part of
a defence? You know the stuff I mean. Take a car wash for example.
"The owner accepts no responsibility whatsoever for any loss, damage
or injury caused in any manner whatsoever or wheresoever or howsoever
arising while using this facility." That kind of blah.

My feeling has always been that you can't disclaim yourself out of
what would otherwise be a valid liability claim. Say, for instance,
someone is using the drive-through car wash and the apparatus
collapses on top of the car. But different jurisdictions may have
different feelings on the subject.

Fortunately I've never been involved in a claim where that situation
has existed but I see so many of these disclaimers that I wonder if
they are worth anything or is it just a case of hoping that people
will be discoraged from lodging claims?

FoggyTown

On 3 Jul 2003 07:39:48 -0700, foggytown@aol.com (Mike Girouard) wrote:
Are liability disclaimers ever accepted as a defence, or even part ofa defence? You know the stuff I mean. Take a car wash for example."The owner accepts no responsibility whatsoever for any loss, damageor injury caused in any manner whatsoever or wheresoever or howsoeverarising while using this facility." That kind of blah.My feeling has always been that you can't disclaim yourself out ofwhat would otherwise be a valid liability claim. Say, for instance,someone is using the drive-through car wash and the apparatuscollapses on top of the car. But different jurisdictions may havedifferent feelings on the subject.Fortunately I've never been involved in a claim where that situationhas existed but I see so many of these disclaimers that I wonder ifthey are worth anything or is it just a case of hoping that peoplewill be discoraged from lodging claims?

The critical distinction is between voluntary assumption of a known
existing risk and waiver of unknown or latent risks or of future
conduct. Knowing and intelligent waivers of known risks are almost
always upheld. A disclaimer of liability for injury in an amusement
park might protect the owner from liability for a customer falling off
a ride, but not for failing to maintain the ride's safety features or
for pushing the customer off the ride.

Also, a disclaimer or waiver of liability which is overbroad might be
disregarded altogether. It's just silly to post a sign at the
entrance to commercial premises that says "The management is not
responsible for loss or injury to customers from any cause whatever.
Enter entirely at your own risk." This is probably not a defense to
anything. but a specific sign that says "Warning: This theatrical
production involves the use of fog machines, gunshots, strobe lights,
cigarette smoking and shocking visual depictions" may not be a bad
idea.

A sign that says, "Please secure your valuables. The management is not
responsible for theft of unattended property," may protect the
management from theft by other customers, but it will not protect the
management if they let known thieves roam about or THEY steal the
customer's property.

These distinctions are not beyond the understanding of the ordinary
person, and are really just common sense. Unfortunately, small
business people are always looking for the magic legal words that will
protect them. There is only one magic word: "insurance." And Foggy's
Boyz will defend you!

- Jon Beaver

foggytown@aol.com (Mike Girouard) wrote in message news:<cb8d4013.0307030639.13d11676@posting.google.com>... Are liability disclaimers ever accepted as a defence, or even part of a defence? You know the stuff I mean. Take a car wash for example. "The owner accepts no responsibility whatsoever for any loss, damage or injury caused in any manner whatsoever or wheresoever or howsoever arising while using this facility." That kind of blah. My feeling has always been that you can't disclaim yourself out of what would otherwise be a valid liability claim. Say, for instance, someone is using the drive-through car wash and the apparatus collapses on top of the car. But different jurisdictions may have different feelings on the subject. Fortunately I've never been involved in a claim where that situation has existed but I see so many of these disclaimers that I wonder if they are worth anything or is it just a case of hoping that people will be discoraged from lodging claims? FoggyTown

Whether a disclaimer is effective depends on what they're trying to
disclaim and whether it's appropriate in the situation.

Two kinds of liability disclaimer are generally effective:

* When there's no bailment, a disclaimer may successfully cover
ordinary negligence. Take your drive-through car wash example. Say
there's a sponge that should have been wet and supple, but it's dry
and stiff, and it strikes your antenna and snaps it off. Probably
ordinary negligence, and the disclaimer is likely to prevent you from
recovering from them.

* When there's an assumption of risk, a disclaimer is usually good
enough to cover ordinary negligence. This comes up regularly in
participant sports.

A liability disclaimer generally isn't effective:

* For gross negligence, recklessness, or deliberate acts. In the car
wash example, if an employee left a broken detergent bottle on the
track, and it tore up your tire, you might have a case that that was
gross negligence, and the disclaimer would be ineffective.

* When there's a bailment. This comes up regularly in the valet
parking trade. The parking operator is a bailee and can't disclaim
responsibility for his negligence, no matter how hard he tries or how
carefully he words his disclaimer. If your car wash was the kind where
an employee takes your car and guides it into the car wash track, you
could claim there was a bailment.

--
Not a lawyer,

Chris Green

Jon Beaver <jbeaver@NO.com> wrote:
On 3 Jul 2003 07:39:48 -0700, foggytown@aol.com (Mike Girouard) wrote:Are liability disclaimers ever accepted as a defence, or even part ofa defence? You know the stuff I mean. Take a car wash for example."The owner accepts no responsibility whatsoever for any loss, damageor injury caused in any manner whatsoever or wheresoever or howsoeverarising while using this facility." That kind of blah.My feeling has always been that you can't disclaim yourself out ofwhat would otherwise be a valid liability claim. Say, for instance,someone is using the drive-through car wash and the apparatuscollapses on top of the car. But different jurisdictions may havedifferent feelings on the subject.Fortunately I've never been involved in a claim where that situationhas existed but I see so many of these disclaimers that I wonder ifthey are worth anything or is it just a case of hoping that peoplewill be discoraged from lodging claims?The critical distinction is between voluntary assumption of a knownexisting risk and waiver of unknown or latent risks or of futureconduct. Knowing and intelligent waivers of known risks are almostalways upheld. A disclaimer of liability for injury in an amusementpark might protect the owner from liability for a customer falling offa ride, but not for failing to maintain the ride's safety features orfor pushing the customer off the ride.Also, a disclaimer or waiver of liability which is overbroad might bedisregarded altogether. It's just silly to post a sign at theentrance to commercial premises that says "The management is notresponsible for loss or injury to customers from any cause whatever.Enter entirely at your own risk." This is probably not a defense toanything. but a specific sign that says "Warning: This theatricalproduction involves the use of fog machines, gunshots, strobe lights,cigarette smoking and shocking visual depictions" may not be a badidea.A sign that says, "Please secure your valuables. The management is notresponsible for theft of unattended property," may protect themanagement from theft by other customers, but it will not protect themanagement if they let known thieves roam about or THEY steal thecustomer's property.These distinctions are not beyond the understanding of the ordinaryperson, and are really just common sense. Unfortunately, smallbusiness people are always looking for the magic legal words that willprotect them. There is only one magic word: "insurance." And Foggy'sBoyz will defend you!- Jon Beaver

That's pretty good Jon, but I have a few extra questions....

Aren't such dislcaimers generally offered as terms of
express or implied contracts, and therefore also subject to
ordinary contract defenses, including, assuming they are
otherwise found to be terms, illegality or violation
of public policy?

Isn't it common for jurisdictions to regard as not legal those
things which are contrary to an express provision of law,
contrary to the policy of express law, or contrary to good
morals.

Isn't it so in California, and possibly throughout the US that
contracts which have for their object, directly or indirectly,
to exempt any one from responsibility for his own fraud, or willful
injury to the person or property of another, or violation of law,
whether willful or negligent, are against the policy of the law?

Of course, Froggy probably already knows that publishing a
notice in the newspaper, three times on the main page in bold
20 point type declaring "I am no longer responsible for the
debts of my wife!!!" will avail him not, so no need ot mention
that to him.

But aren't these some of the issues that froggytown's evil minions
might face in defending such disclaimers. Isn't it possible that
FroggyTown actually formed his opinion concerning the worth of
such disclaimers after careful research....
of bills from his minions defending proported disclaimers? :)

Just asking.

-Merlin

"Mike Girouard" <foggytown@aol.com> wrote in message
news:cb8d4013.0307030639.13d11676@posting.google.c om... Are liability disclaimers ever accepted as a defence, or even part of a defence? You know the stuff I mean. Take a car wash for example. "The owner accepts no responsibility whatsoever for any loss, damage or injury caused in any manner whatsoever or wheresoever or howsoever arising while using this facility." That kind of blah. My feeling has always been that you can't disclaim yourself out of what would otherwise be a valid liability claim. Say, for instance, someone is using the drive-through car wash and the apparatus collapses on top of the car. But different jurisdictions may have different feelings on the subject. Fortunately I've never been involved in a claim where that situation has existed but I see so many of these disclaimers that I wonder if they are worth anything or is it just a case of hoping that people will be discoraged from lodging claims? FoggyTown

That would depend on what's reasonably expected by the customer while on the
premsises.
If they have a machine that malfunctions which causes damage to your car, or
injures you, they are liable regardless.
In a car wash, it is expected that the area will be wet and slippery. That
certain parts of the cleaning machine will touch your car, and if something
breaks off, that's your risk you have to live with.
But if the floor gives way and you fall through it, then that is not simply
washed away by a sign.

You go to a restraunt and they put your coat in a store room while you're
eating.
You knowingly left $200 in your coat pocket. When you pick up the coat, the
money is gone.
Can you sue the restraunt? Yes. But you won't get anything.

You to go to an amusement park and ride the roller coaster. During the ride
the supports break and you are injured. Can you sue? You betcha. Regardless
of signs posted saying "at your own risk".

I work at a car wash.
First let me say that if it is our fault, we always pay.
Our liability sign states that we are responsible for equiptment malfunctions only.
We are not responsible for driver neglagance, loose trim or molding, anything on any car 10 years or older.

We have been to court more than once, and we have won every time. It seems everyone thinks it's always the car washes fault. If someone is in drive and hits someone else, we are not at fault.