A disclaimer of liability is a statement by one party to another that explains that some sort of harm may result and attempts to release the disclaimer-expressing party from any liability associated with the particular harm described. Generally, disclaimers are most associated with contract law, though there are also disclaimer implications in tort law — law that deals with breaches of duty between private individuals. As a matter of public policy, not every disclaimer of liability will be enforced. The court will typically have discretion in determining whether or not a disclaimer should be upheld.
In contract law, a disclaimer of liability typically is worded specifically to relieve or limit the potential liability one party to the contract may face. For example, a contract that a gym requires all its members to sign may include an acknowledgment of the risk that the member may be injured using the gym’s equipment. Further, it will typically disclaim any liability for personal injury that the member suffers while working out. Though such a disclaimer will typically be upheld in court, it is unlikely that it will be upheld in the event that the member is injured from the use of poorly maintained equipment.
A person who owns land could be liable to injuries to third parties who are hurt on his or her land. Typically, a landowner has a duty to warn anyone who enters his or her land of any potentially harmful man-made objects. As a result, if the foreseeable victim tries to cross a bridge on the landowner’s land that the landowner knows is not safe and is hurt, the landowner could be held liable for the victim’s injuries. However, if the landowner places a warning sign explaining the dangerous condition of the bridge, then it could serve as a disclaimer of liability.
In the event that a disclaimer of liability becomes the subject of litigation, courts typically have broad discretion to void the disclaimer if it would be against public policy to enforce it. For example, an attorney-client agreement may contain a clause that disclaims the client’s right to sue the attorney for malpractice in any circumstance. Most jurisdictions consider such a clause unenforceable even if the client has the agreement reviewed by another independent attorney. The rationale for such a policy is that attorneys are often in a unique position that gives them a lot of leverage over their clients and enforcing such clauses would allow attorneys to exploit this leverage to their client’s detriment.