Are Product Liability Disclaimers Effective?

When you purchase a product at a store or online, it usually comes with instructions. Sometimes, these instructions contain something called a disclaimer. A disclaimer is a written message the product manufacturer includes with its product to limit civil liability.

For example, a product may have a warning on its labeling or packaging stating, "Product not intended for children under the age of five." The goal of the manufacturer or retailer is to avoid consumers suing them for damages should a young child choke or get hurt while using their product. The question is whether this disclaimer will be effective.

It's important to remember that the courts apply strict liability in most product liability cases. However, sometimes you have no choice but to sue under tort law. If you're hurt while using a defective product, such as a defective medical device, your attorney will decide which legal theory is best to pursue in your case.

Do Disclaimers Protect Manufacturers from Liability?

Generally, no. A product liability disclaimer usually doesn't shield a manufacturer from liability in a typical personal injury case. 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 a written disclaimer in the product's instructions or packaging. However, these disclaimers usually don't count for much since, as a customer, you haven't bargained for the loss of your warranty rights.

General disclaimers only work with written contracts. If you enter into a written agreement with the manufacturer, and that contract contains a disclaimer clause, then the courts will determine that you bargained for the disclaimer.

In other words, the judge will find that you were aware of the danger and decided to buy and use the product anyway. Because of the manufacturing defect, you may have obtained the item for a lower price or needed the thing so badly that you didn't care about any product defects.

In the individual customer setting, written contracts aren't standard. However, they happen regularly for handmade and other custom, high-priced products.

Implied Warranties

When you buy a product on the open market, the product comes with a warranty. The defendant may have to compensate you if your product liability lawyer can prove the defendant breached its warranty claims.

You may wonder what your warranty rights are. For purposes of product liability cases, there are two warranties you need to know about. These include the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. These warranties promise that the product is safe and designed well enough for its use as the designer intended.

The manufacturer makes these implied promises. Manufacturers do not need to spell them out whenever you buy their product. The implied warranty may seem fairly broad and powerful. Remember that they only cover situations where the customer's use is reasonably foreseeable.

Customers who use products in ways that aren't reasonably foreseeable, such as using a lawnmower to trim body hair, cannot then go to trial and claim that an unsafe product injured them. The judge will consider the plaintiff's use of the product.

Every state has its statutes dealing with these implied warranties. For example, California Civil Code Section 1791.1 states that a product must meet four conditions to honor the implied warranty of merchantability:

• The product itself would pass as acceptable in the market
• The item is fit for the purpose described by the manufacturer
• The manufacturer sold the product with adequate packaging, labeling, and container
• The item meets any guarantees or promises made by the manufacturer on the product label or container

In New York, the requirements necessary to honor the implied warranty of merchantability are slightly different. According to New York Uniform Commercial Code Section 2-314, a product must meet the following requirements for a manufacturer to honor their implied warranty:

• The consumer product is of fair and average quality
• The item is fit for the purpose and functionality most people associate with the product
• The manufacturer makes all units in a consistent way
• The product came with adequate packaging and labeling
• The manufacturer conformed to the promises made on their product's label

As you can see, proving your case against a manufacturer, distributor, or retailer is difficult. When you meet with your injury lawyer, they will review the laws in your jurisdiction and determine if you have a valid legal action.

General Product Liability Disclaimers

In an attempt to reduce the amount of money they will have to pay or to avoid court altogether, many companies include general disclaimers, also referred to as product liability waivers, that look something like this:

"No claims, representations, or warranties, expressed or implied, are made by our company regarding the safety, reliability, durability, and performance of our products. Furthermore, our company accepts no liability whatsoever for the safety, reliability, durability, and performance of any of our companies' products."

Remember, in product liability law, these general disclaimers usually aren't valid since customers cannot properly bargain away their warranty rights. If companies could escape liability by simply writing this disclaimer, they would have little incentive to ensure that their products are safe.

Though manufacturers cannot easily escape liability, sellers can escape liability by informing the customer that a product is being sold "as-is." This means the consumer buys the product as they find it. “As-is" usually works as a valid disclaimer because the buyer can inspect the product and decide whether to purchase it despite its condition.

Effective Product Liability Disclaimers

Sometimes, disclaimers are more specific. They are created specifically for a particular product or use. Here is an example of an explicit disclaimer:

"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, especially this particular iteration of one. This disclaimer works more as a warning that restates the law. 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? A disclaimer such as the one above warns customers about product misuse.

One defense to product liability claims is the assumption of risk. The manufacturer may argue that the customer was aware that how they used the product might be unsafe and lead to injury. If the customer knew that their particular product use would or could lead to harm, they cannot make a valid product liability claim.

When manufacturers include a specific disclaimer in their product's packaging or labeling, they hope the court will find that the customer assumed the risk since the manufacturer warned them about misuse through the disclaimer.

Have Concerns About a Product Liability Waiver? Get a Claim Evaluation

If a product has injured you or a loved one, you may be able to obtain compensation for your expenses, including medical costs, lost wages, property damage, and pain and suffering. However, it's essential to remember that product liability lawsuits are often complex affairs made even more difficult through product liability disclaimers.

If you're considering pursuing a product liability claim, consulting with an experienced attorney first for legal advice is in your best interests. Fortunately, you can get a case evaluation from a qualified product liability attorney.