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Legal basis for disclaiming responsibility
April 18, 2006 8:16 AM   Subscribe

What legal support is there for an entity to disclaim responsibility?

A lot of public places (i.e. parking lots, shopping malls, etc.) have certain discalimers that they are not responsible for any loss or damage to your car, for instance, while on the property. I understand that this is to minimize lawsuits brought against them, and this seems fair, since these places are privately owned and you are agreeing to this when you enter the property.

But I've noticed other legal entities are doing this, too, and I wonder what weight their disclaimer holds? I am thinking most notably of dump trucks, trash trucks, etc. on the freeway. Most of them have a small sign on them that says they are not responsible for broken windshields due to crap falling from their truck. But can they support this in court? Wouldn't any damage done to my car because of their negligence to clean up or fasten their loads be their legal responsibility?

If this sort of disclaimer is valid, then what else can (hypothetically) be frivolously disclaimed with the same precedent?

(This reminds me of the Simpsons episode where Lisa and Bart walk towards each other punching and kicking the air, and it's "not their fault" if one of them gets in the way.)

...ya, ya, YANAL and all that... just food for thought...
posted by toomanyplugs to Law & Government (15 answers total)
 
IANAL, but I had a lawyer once tell me that none of these things carry any weight whatsoever, as you can always make an argument that these things are not contracts, the viewer/signer is not appropriately warned (i.e. you just didn't see the sign, or you didn't understand the printed disclaimer that you signed) and that moreover, many accidents will be the result of negligence anyway, which usually cannot be dismissed, even if the person is warranting otherwise.
posted by frogan at 8:22 AM on April 18, 2006


AFIK most places have laws requireing you to follow so far behind a vehicle. especially those that are carrying loads that may come loose. This is so that you have time to react to and avoid any debris. If you follow too close you're SOL. Also, a court would most likely rule against you sine there was a sign posted and you still followed close enough to have damage done to your car. You best bet though would be to consult someone in the legal profession.
posted by ChazB at 8:22 AM on April 18, 2006


IANAL, but I'm pretty sure you can't be forced to waive claims arising from someone else's negligence.

Also, wouldn't the only way to read the sign on a back of a dump truck be to follow it too closely?
posted by oaf at 8:26 AM on April 18, 2006


AFIK most places have laws requireing you to follow so far behind a vehicle. especially those that are carrying loads that may come loose.

And yet they also have laws that prohibit the truck from scattering gravel all over the road. Finding fault is a matter for the courts, and has very little to do with signs posted on the back of the truck.
posted by smackfu at 8:28 AM on April 18, 2006


AFIK most places have laws requireing you to follow so far behind a vehicle. especially those that are carrying loads that may come loose. This is so that you have time to react to and avoid any debris.

bullshit

It is a the driver's responsibility to make sure loads are secure. Carrying an insecure load is a traffic violation in every jurisdiction I can think of. If it falls of and kills someone, the fact that they are tailgating you might possible reduce the damages slightly when you are sued, since there is contributory negligence, but if you were negligent when you attached the load in the first place (as opposed to it falling off in some freak accident over which you had no control) you're still going to lose.

Those signs generally have no legal force unless they are part of an (implied) contract. For example, in return for you using this parking lot you accept that if your car is broken into, you can't sue us. It might or might not stand up in a court of law. A sign disclaiming responsibiility where there is no contract, implied or otherwise, like when you are following a random truck down the road, has no force whatsoever.

IANAL.
posted by unSane at 8:30 AM on April 18, 2006


If this sort of disclaimer is valid...

It's not.

The practice of law is often about posturing.
posted by cribcage at 8:48 AM on April 18, 2006


IANAL, but I had a lawyer once tell me that none of these things carry any weight whatsoever, as you can always make an argument that these things are not contracts, the viewer/signer is not appropriately warned (i.e. you just didn't see the sign, or you didn't understand the printed disclaimer that you signed) and that moreover, many accidents will be the result of negligence anyway, which usually cannot be dismissed, even if the person is warranting otherwise.

IANAL, but I'm pretty sure you can't be forced to waive claims arising from someone else's negligence.

These are both false (albeit widely-held beliefs). This is a state-by-state issue, and states have different rules, but in virtually all states, negligence can be knowingly waived/released by an adult. If you sign a waiver, or an assumption of risk, or a release of claims, in all likelihood it will be upheld (absent fraud or duress). That said, a sign on a passing truck would not constitute a valid, agreed-to waiver in any state.
posted by pardonyou? at 8:59 AM on April 18, 2006


No.
posted by dios at 8:59 AM on April 18, 2006


In traffic school in California, my wife learned that the only 2 things that can legally be dropped from a moving vehicle: Water, and chicken feathers. She thought it funny enough to come home and tell me about it.

All other loads must be securely fastened and if anything comes off/falls out, it's a citeable traffic violation.
posted by whoda at 9:12 AM on April 18, 2006


There about as effective as wearing a t-shirt that says "I'm not responsible for anything I do".
posted by Carbolic at 9:57 AM on April 18, 2006


whoda: Close, but no cigar. The two things that you can't be cited for, for dropping on California highways are clear water and feathers from live birds. Makes more sense, yes?
posted by Daddio at 10:08 AM on April 18, 2006


I apologize for inserting fact and research into this but a quick googling of "liability waiver" turns up some worthwhile reading here and here and here.

The first two bring up the point of reasonable disclosure of what is being waived, and that's the kind of thing likely to come up in the case of the parking lot example the poster mentions. Most cases you read about in those kind of circumstances (or where a shop/club owner is taken to task for not hiring adequate security, etc) relate to when the person being sued can be shown to have had knowledge of an above-average risk that they are failing to respond to.

So, if the parking lot owner knows they are being targeted for vandalism for some reason or that there's a baseball sandlot on the other side of that fence and broken windshields are a regular occurrence they're going to have a harder time making those signs out to be sufficient.

A briefer answer is this: you simply cannot sign away your right to use. If you could, don't you think you would have seen it on some (all!) contracts by now? You DO see requirements that you enter into arbitration, and if you google a bit for arbitration clauses you'll find that even that is often not air-tight.

No document or sign can prevent bringing suit; the best any of them do is serve as ammo for the defense in those cases. They're useful because in most civil cases where they're any possibility of multiple individuals being responsible for a situation the court will assign percentages of culpability. My mother served on a case where it was a slam-dunk for the person suing, but in the end the majority of blame was assigned to the security guard, not the employing store. There was little chance of getting any big money out of a $7 an hour employee so it was a very Pyhrric victory for the fellow who got shot.
posted by phearlez at 11:05 AM on April 18, 2006


There was little chance of getting any big money out of a $7 an hour employee so it was a very Pyhrric victory for the fellow who got shot.

But damages must be paid regardless, so if billion dollar company A was 1% responsible, and personally bankrupt security guard B was 99% responsible, company A would end up paying 100% of the damages... So it was a pyhrric victory for the employing store.

Okay, not exactly, from wikipedia, Comparative responsibility:
Second, consider the situation where a defendant apportioned some fault can not pay his portion of the damages. States will cover this situation differently. There are three options:

a. The plaintiff will not recover from this defendant, and the other defendants will be responsible only for their share. Thirteen states follow this approach.


The next three options involve the doctrine of joint and several liability

b. Any of the other defendants can be held responsible for the unpaid share. Fifteen states follow this approach (10 contributory responsibility, 5 which still follow contributory negligence.

c. The unpaid share will be reapportioned among the other defendants, according to their percentages. Some states hold that only defendants above a specific percentage will share.

d. The unpaid share will be reapportioned among the defendants AND plaintiff according to each party's percentage share.
I think cribcage's answer captures the take home message for this question :P
posted by Chuckles at 1:09 PM on April 18, 2006


The issue is whether the contracts are against public policy, whether they are unconscionable, or whether they are contracts at all. Contracts must include an offer and an acceptance, so a waiver on the back of a truck won't pass muster- no one ever accepted their offer. Dry cleaner/shopping mall/skydiving waivers are trickier, and as above, must be evalated state by state. For example, you can almost never waive liability for someone else's intentional, reckless, or grossly negligent conduct, but you can often waive liability for injuries that are caused by simple negligence. Whether a simple sign posted in a parking lot is enough to waive liability is again a state by state inquiry, but these will almost always fail. An actual contract that you personally sign that waives liability is different- there the courts are more willing to find that you knew what you were doing and consciously accepted the risk.
The state rules about signing liability waivers are interestingly often opposite of each other- for example, in New York a place of amusement can't force someone to waive their right to sue if they they are negligently injured but schools, charities, etc. can. Conversely, in California schools, charities, hospitals, etc. can never impose liability waivers but places of amusement are free to do what they will.
Often, the relevant inquiries are, did you have other options? Is the bargaining power between you and the entity wildly disproportionate? Does the entity provide an essential service? How dangerous are the activities the entity is promoting?

I am not quite yet a lawyer.
posted by ohio at 2:21 PM on April 18, 2006


Thanks to everyone who answered. I didn't think that these sorts of claims held much weight, but I couldn't figure out the right buzzwords to search for. phearlez helped out a lot with "liability waiver" and arbitration clauses.
posted by toomanyplugs at 7:57 PM on April 18, 2006


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