As us lawyers say, exculpatory clauses

You see fine print everywhere. But what does the fine print mean?

• You check your coat at a restaurant, but your ticket states they are not responsible for loss or damage

• The parking garage ticket says they are not responsible for damage to your car or the contents within

• Your lease says the landlord is not responsible for injury or damage which occurs on the property

Generally speaking, exculpatory clauses (like the examples above) are part of an agreement which relieves one party from legal responsibility. For the most part, these provisions are enforceable. However, courts are very reluctant to enforce exculpatory clauses unless they are very clear and specifically warn of the danger which the individual gives up. The danger of injury while working out at the gym may be obvious, but the weight machine collapsing due to poor maintenance is not. McCready Law have successfully sued fitness clubs for injuries caused by faulty equipment even when the membership agreement includes a release and limitation of liability.

The trend regarding these type of contracts is to enforce the agreement, so long as the individual is free to decline. For example, you can refuse to check your coat; you can park somewhere else, etc.. A client once contacted our office when he was injured skydiving. The skydiving company immediately faxed over the release signed by our client. Since the client was always free to decline to sky dive, we declined the case.

In the last example above, an exculpatory provision in a lease is less likely to be enforced. In addition to examining what rights an individual is giving up, courts also look at the positions of the parties when deciding when to enforce an exculpatory clause. A landlord is in a stronger bargaining position than a tenant. While a landlord can negotiate many terms of a lease, it is unlikely a landlord can release himself from all responsibility for injury on the premises.

Releases for Medical Procedures

Our office is often confronted with consent & release clauses in medical malpractice cases. Imagine this scenario: you are in a hospital gown, on a surgical table, prepped for surgery and the doctor says, “sign this before I put you under anesthesia.” While such a release is unlikely to protect a doctor who commits malpractice, it will likely provide a defense to most risks and complications which arise. For example, the risk of a blood clot is a known risk and complication of all surgeries. However, operating on the wrong part of the body is not a known risk and complication.

Click here if you accept the terms

Many websites and downloads require you to check a box that you have read the agreement and agree to accept the terms of the license. If you are reading this e-mail using Microsoft Explorer, Google Chrome or Mozilla Firefox, you clicked a box which allowed you to download the program. Originally, there was some dispute whether these click-through licenses were enforceable. However, today they are generally enforced. The main risk with most downloads is that the computer company has no responsibility if the program damages your computer. So, the rule with these click-through licenses is buyer beware. Once again, courts have held that you are always free to decline to download the software.

Intentional misconduct or gross negligence

An agreement may be enforceable if it is for a simple mistake, or negligence. However, an agreement will never release someone from intentional misconduct.

Most “fine print” serves as a deterrent to people who may want to bring a claim. Many people simply assume that the release prohibits them from pursuing a claim. While many of these clauses are legally valid, there are certainly exceptions.

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