Many services, like the SDMB, have policies to the effect of
“By using this service, you agree to the following rules …
We are not responsible for …”
and they go on to list a bunch of things for which they are not responsible, and thus for which you cannot sue them.
My question is, why list all the stuff in detail? Why not just have a blanket statement like
“By using this service, you agree that you will never sue us about anything”
Would such a user agreement be legal?
If legal, would it be useful, i.e. would it achieve its purpose, or would people still find ways to sue?
I’m not a lawyer, but I don’t think that you can make such blanket statements as “I will not sue you about anything.” You can’t draw up a legal agreement, for example, that allows you to do something illegal.
To put it another way, even if you did agree to something that said “By using the SDMB, I agree to never sue you” and then, for example, Ed Zotti used your user info to find your address and showed up at your house, pelted you with eggs causing you to slip in egg-goo and break your neck, legally you could sue, regardless of what balderdash you signed before hand.
At least, that’s how the legal types have explained such things to me before.
But the agreement would be referring to actions/events resulting from you using the service.
I’m sure the user agreement for Microsoft Windows doesn’t have a clause allowing or disallowing Bill Gates to come to your house and throw eggs at you.
The user agreement should cover things that can happen to you as a direct result of using the service.
What part of " Ed Zotti used your user info to find your address" isn’t part of the service?
I think that the sticky part is what you say above - “things that can happen to you as a direct result of using the service.” People can and do prove that a lot of goofy stuff happens as a direct result of using a service.
Another bit of anectodal evidence: My husband works at home, and is an independant consultant. A few years ago, one of his large corporate clients decided that we had to have liability coverage that covered us in case someone came to our house, was injured (say, slipped and fell on icy steps) then tried to sue the large corporate client. Seems that they thought that someone could come along and make the case that because hubby contracted with Large Corporate Client, and hubby owned the house, that was enough of a connection that they could sue Large Corporate Client.
The law is a strange thing. Even stranger is why I’m answering this thread since even I admit I’m far from qualified to offer legal advice.
But to answer your question, the reasoning is likely to be that the lawyer drafting the clause thinks that excluding very specific potential liabilities is more likely to be held enforceable.
As a broad rule, when someone suffers loss and the person responsible tries to rely on an exclusion clause, the court will often sympathise with the claimant and will therefore try its damndest to find a loophole. That may possibly include holding that a general clause was not intended to cover the particular circumstances of the case at hand. Perhaps on the basis of a legal fiction such as that the parties never contemplated or intended the clause to exclude the particular risk at hand (that may not be completely logical, but nonetheless…)
Contrastingly, if the clause specifically names a particular narrow class of loss, and excludes liability for it, it is then more difficult to argue that the parties did not agree on the point.
Without specifics of the clause in question and the jurisdiction, I doubt you will get a more specific answer.
The answer is basically what Princhester said. Depending on the case law in your state, many courts will not exclude all forms of liability if the liability waiver is in blanket form. Some states require that the waiver be in all caps or boldface or other attention-grabbing form as well.
The best example I can think of is a waiver of your own negligence: many states’s courts simply won’t enforce such a waiver in blanket form – you have to specifically say that you are waiving liability for your own negligence.
This is why the phrase “including but not limited to” is one of the draftsman’s best friends.
OK, I see that this is the case, but I have to ask: By what reasoning do they act this way? What explanation do the courts give to be able to ignore blanket liability waivers?
Generally, if they’re held unenforceable, it’s because the court believes that the waiver is contrary to public policy.
Not all contracts are enforceable. One example: If you and I bet on a football game, and you lose and refuse to pay, I can’t sue you to collect. That’s because gambling is illegal and against public policy.
Seriously though, My Business Law class said something to the effect that you can’t “exculpt” that which is contrary to public policy… much like the gambling example. In short, most of the contracts/waivers you sign prior to surgeries/operations can’t protect the doctors. It won’t hold water.
