No, houlihan, I do not use this board to make decisions. True, I do ignore the IRMI guides, policy language, contravctual language, facts of the loss and common sense. But I do base all of my decisions on my “Magic 8 Ball.”
It turns out that the answer is “no”, such contractual language is not illegal nor is it against public policy in Ohio. Personally, I believe that such a contract creates a moral hazard, but that it beside the point.
There are still about 100 other issues to be resolved, but I will refrain from mentioning them for obvious reasons.
While I have never practiced law in Ohio (I am licensed in Missouri and Illinois), this is one of those rare situations which involves a universal rule.
A waiver of liability for ordinary negligence is effective provided that one can show that it was “brought home” to the injured party in advance–that is, it couldn’t be buried in fine print no one would be expected to understand or posted on a tiny sign no one ever noticed.
One can never waive liability for gross negligence.
Whether negligence is gross or ordinary is an issue for trial. A real life example of clearly gross negligence: trying to remove a “no smoking” sign from a propone tank with a blow torch.
Ohio law may have complicating factors to consider, such as a law dictating what is required for a clearly under- standable contract, or case law which indicates that courts there have a policy to cut a break for the subordinate party in a contract of adhesion (that is, one offered on a takeitor leave it basis with one party dictating all of the terms).
Whether a contract provision is “illegal” is a different issue than whether it is enforceable.
Slipster, I don’t entirely disagree with you, but be careful citing to “universals”. No Ohio case law recognizes the distinction you suggest between indemnification for negligence and gross negligence except in the banking context, which is controlled by statute, i.e. Citfed Mortg. Corp. of Am. v. Parish, 1997 Ohio App. LEXIS 1291.
Mr. Zambezi, I always suspected that metaphysical intrigue was at the basis of many decisions in the risk/insurance field- thanks for confirming my suspicion.