+I have always wonderd about allof that fine print (that nobody reads) on the back of theatre tickets, coat-check tickets, ski lift tickets, parking lot tickets, etc.
Usually it says something like:…" not responsible for loss by fire, theft, or any act of god. User agrees that he/she bears the risk (ski area), and seller assumes no responsibility… or words to that effect.
Anyhow, lawyesr have told me that these disclaimers are worthless…you can still sue a ski area if you ski off the trail and fracture your spine in doing so. When you park your car in a parking lot, what responsibility to you does the owner of the lot have? Are they in fact liable if some drunk trying to park his car crashes into yours?
So what’s the dope on disclaimers?
(I am a lawyer, but this is not to be construed as legal advide. If you have legal problems, contact a competent attorney licensed to practise in your jurisdiction.)
There might be some limits to what can be disclaimed, depending on the law in your jurisdiction, but as a general rule disclaimers or fine print operate as valid contractual terms. Fine print is enforced all the time by courts – on the backs of tickets, in shrinkwrap notices, in clickwrap (“I agree”) windows, etc.
But there are no easy answers to such questions.
Especially with regard to a dangerious activity like skiing, the law might shift a lot of the risk to you anyway (“assumption of risk”), but if there is actually any negligence (breach of duty) or strict liability (product liability) or tort (harm caused by intentional act) on the part of the ski operator, I suppose there might be some limits to the applicability of the disclaimer.
In any specific case, you’d have to consult a lawyer. In a lot of cases, even if the ski lift might ultimately be able to successfully assert the disclaimer, it still might be worth it to sue them, especially if you’re hurt badly – you never know, they might settle.
In general, it would be hard to pin liability for some drunk driver on the ski lift operator, but, again, there might be other factors involved.
They are fig leafs.
As discussed elsewhere, liability is whatever a court decides it is.
Google “ski injury liability cases”
There are three kinds of fine print “disclaimers” that I see being enforced by courts all the time. They are more in the line of “procedural” issues rather than substantive liability issues, but they can still be important –
Choice of venue (if you sue me, you can only bring suit in this court)
Choice of law (only the law of this state applies to our relationship)
Arbitration (before you sue you must submit to private arbitration)
The one I love is the “we are not responsible for lost or stolen articles left in car” on the parking garage claim ticket.
I think the concept is bailment…
I love it, acsenray. A disclaimer on a response discussing disclaimers.
I agree that disclaimers are usually given effect, at least against non-intentional torts, which would include negligence. I’ve also seen them given effect in bailment cases. (Many years ago, I represented a large valet parking company. Its tickets had disclaimers, which usually worked, or at least gave me an argument to negotiate a favorable settlement.
As a general rule, if the disclaimer is considered “unconsciounable” it will not be enforced. A condition will be considered unconsciounable if the parties are of disparate positions. This often arises in leases.
As for parked cars, the first issue to be considered is whether there is a bailment or whether it is merely storage. If the driver parks the car himself, keeps the key, and gets it himself, its storage, and the owner of the land has no responsibility for loss of articles from the car. If it is a bailment, there is a fiduciary arrangement, and the bailee must not only exercise due care, but a high degree of care.
In many jurisdictions, a disclaimer that exculpates the business owner from simple negligence will be enforced. Future liability for gross negligence, recklessness, and intentional acts usually cannot be waived.
Readers may be interested to know that in many jurisdictions, an attorney cannot exculpate himself/herself from malpractice liability.
In addition to common law unconscionability principles, there may be statutory limits on the ability to waive rights by form contract, or any contract. For instance, IIRC, your stockbroker can’t get you to waive your rights under the U.S. securities laws, even if he prints a legend on the back of your stock certificate “agreeing” that you’ll settle any allegation of stock fraud for $50 and a Chuck E. Cheese coupon; and the manifold forms you sign when starting a new job can’t effect a waiver of statutory discrimination/whistleblower claims, no matter how “at will” you agree the employment is. IIRC, these types of anti-waiver principles are codified as well as being fleshed out in jurisprudence.
Yeah, Random, I was chuckling as I wrote it.