Defendants Cannot Avoid Liability by using Inconspicuous Disclaimers

Posted Thursday, October 20, 2016 by Ed Harper

Defendants Cannot Avoid Liability by using Inconspicuous Disclaimers

The desire to limit liability is a strong incentive to business owners. This is not a new situation, and a case from 1971 points this out. In Baker v. City of Seattle, 79 Wn.2d 198 (1971) Robert Baker was planning on playing golf at Jackson Park Municipal Golf Course in the City of Seattle. He rented a golf cart from the proprietor, doing business as Westweld Metal Works.

As Mr. Baker was returning the golf cart, he alleged the brakes failed and the golf cart overturned as a result. He was injured in this calamitous event, and he brought suit against the city and the lessor of the golf cart.

Westweld alleged however, that as part of the rental agreement Mr. Baker had signed, he had given up his rights to sue (as a disclaimer of liability was found in the standard agreement). The Washington Supreme Court overturned this, and stated the font and the type setting, as well as the location of the disclaimer agreement within the standard contract was not conspicuous enough.

The issue in the case “is whether one who business is regularly, at least in part, the leasing of chattels (property) can avoid liability for injuries to customers by placing a disclaimer clause in t a standard form rental agreement.” Baker at 200.

The court reasoned Mr. Baker was not put on notice. Thus, the rental agreement disclaimer would not preclude his ability to seek recompense for his injuries. “The disclaimer was contained in the middle of the agreement and was not conspicuous. To allow the respondent to completely exclude himself from liability by such an inconspicuous disclaimer, would truly be unconscionable.” Baker at 202.

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