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Providers Charged with Strict Liability Are Not Protected by Waivers

By Doyice Cotten

Strict liability is called liability without fault, because one does not have to prove fault Ecuador (1302)for liability. Strict liability law generally applies in situations where one keeps wild animals, where one conducts ultra-hazardous activities such as fireworks displays, and where one manufactures a product that produces injuries. Under the theory of strict liability, one does not have to prove that the defendant was negligent; rather, people or corporations are held responsible for any harm caused by their actions or products, regardless of whether they are at fault or not. Generally, liability waivers do not protect one against strict liability.

 There have been numerous cases in which courts have ruled that such waivers are unenforceable. Some of these include: Westlye v. Look Sports, Inc., (CA, 1993), Sipari v. Villa Olivia Country Club (IL, 1978), Amburgey v. Atomic Ski USA, Inc., (ME, 2007), Wheelock v. Sport Kites, Inc., (HI, 1993), Simeone v. Bombardier-Rotax (PA, 2005), Bhardwaj v. 24 Hour Fitness. Inc. (CA, 2002).

The Colorado Supreme Court (Boles v. Sun Ergoline, Inc., 2010), likewise voided a waiver of the manufacturer of a tanning booth. Rather than resting on negligence principles, the court stated it “is premised on the concept of enterprise liability for casting a defective product into the stream of commerce.” In strict products liability, the focus is on the nature of the product rather than the conduct of either the manufacturer or the person injured. The court referred to the Third Restatement which prohibits “contractual exculpations” from barring or reducing otherwise valid products liability claims for personal injuries by ordinary consumers against sellers or distributors of new products (Restatement (Third) of Torts: Products Liability § 18 & cmt. d). The court went on to say that “there appears to be virtually universal agreement on this point among the other jurisdictions considering the question. “

In a 2013 trail ride case (Messer v. Hi Country Stables Corporation, 2013), the United States District Court for the District of Colorado cited Boles in ruling that “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.” Messer’s suit included negligence, strict liability, and willful-wanton claims.

The court upheld the waiver regarding the negligence claim, but ruled that the agreement did not protect Hi Country against the strict liability claim. Interestingly, the court also ruled that the strict liability claim failed, not because of the waiver, but because horseback riding constituted a service and not a product. The waiver did not protect Hi Country against the willful-wanton claim because 1) such is against public policy and 2) there was a genuine dispute of material fact regarding the claim.