Are Product Liability Disclaimers Effective?
A product liability disclaimer usually doesn’t shield a manufacturer from liability in a typical case where the customer purchases the product from a store. For customers, the law guarantees that the product will be safe when used in a reasonably foreseeable way. Manufacturers often try to avoid this responsibility by inserting written disclaimer. However, these disclaimers usually don’t count for much since, as a customer, you haven’t bargained for the loss of your warranty rights.
Written contracts are one of a few instances in which general disclaimers are considered valid. If you enter into a written contract with the manufacturer, and that contract contains a disclaimer clause, then the disclaimer has been properly bargained for, and the court is likely to find it valid. In the individual customer setting, written contracts aren’t common, but they do happen with some regularity for handmade products (for example, a chair made by a local craftsman) and other custom, high-priced products.
What exactly are your warranty rights? Sellers and manufacturers are legally bound by the "implied warranty of merchantability" and the "implied warranty of fitness for a particular purpose." These are terms that mean that sellers promise buyers that the product is safe and designed well enough to be used in the manner the designer intended. These promises are implied -- which means that they need not be spelled out every time you buy something. The company that made whatever you purchased may still have to pay you damages if it is unsafe.
The implied warranty may seem fairly broad and powerful, but keep in mind that it only covers product use that is reasonably foreseeable. Customers that use products in ways that aren’t reasonably foreseeable – such as by using a lawnmower to trim body hair – cannot then go to trial and claim that they were injured by an unsafe product.
In an attempt to reduce the amount of money they will have to pay, or even to avoid court altogether, many companies include general disclaimers that look something like this:
"No claims, representations or warranties, whether expressed or implied, are made by both our companies as to the safety, reliability, durability and performance of any of our companies' products. Furthermore, our company accepts no liability whatsoever for the safety, reliability, durability and performance of any of our companies' products."
Remember, these sort of general disclaimers usually aren’t valid, since customers cannot properly bargain away their warranty rights in a store. If companies were allowed to escape liability by simply writing this disclaimer, they would have much less incentive to ensure that their products are safe.
Though manufacturers cannot so easily escape liability, sellers can escape liability by informing the customer before the purchase that a product must be taken "as-is,” which means how the product was found when it was purchased in-store. “As-is” works because the buyer has an opportunity to inspect the product and decide whether to buy it given its condition.
A Good Liability Disclaimer Restates Warnings that Would Already Be Considered by a Court
Sometimes, disclaimers are more specific and look more like this:
"In no event shall our company be liable for any direct, indirect, punitive, incidental, special consequential damages, to property or life, whatsoever arising out of or connected with the use or misuse of our products."
Specific disclaimers are more likely to be enforced, and especially this particular iteration of one. This disclaimer works more as a warning that restates the law as it already is – the customer cannot by law, with or without a disclaimer, use a product in an unreasonable or unforeseeable manner, and then claim that the manufacturer is liable for injuries. Thus, if the company chooses to put such a disclaimer on its product, the courts will give it more consideration. In reality, however, even this disclaimer will do little to change the fundamentals of a legal case, since it merely restates the law.
Assumption of Risk
What does a specific disclaimer do for a manufacturer, then? In a way, the specific disclaimer such as the one stated above warns customers about product misuse. One defense to product liability claims is assumption of risk. When a manufacturer makes such a defense, it is arguing that the customers knew that the way they used the product might be unsafe and lead to injury. If the customers knew that their particular use of the product would lead to injury, then they cannot make a valid product liability claim.
When manufactures include a specific disclaimer, they are hoping that the court will choose to find that the customer assumed the risk, given that the customer was warned about misuse by the disclaimer. In that sense, the value of a disclaimer is in the way it changes the customer’s mindset.
If you have been injured as the result your use of a commercial product, please contact a qualified product liability attorney for help building your case.