Asinine Arbitration Clauses and Loony Liability Waivers

For the past nine years, the Michigan tort reform group, M-Law, has run a contest for the best wacky warning label as way of illustrating the absurd consequences of the nation's litigiousness. Media people like John Stossel love to pick up on these "don't use heat gun as a hair dryer" sorts of labels, which are, I must admit, occasionally very funny.

But there's a corollary to the wacky warnings, which you might call "crazy contracts," or the extremes to which businesses will go to prevent people from suing them. They appear in even the most benign transactions these days, evidence of serious paranoia in the business community. You can't buy a Dell printer cartridge online without first waiving your right to go to court if Dell's cartridges kill your printer. Similarly, liability waivers dot everything from HMO contracts to ski resort lift passes. My father once found an arbitration clause in a Utah hospital admissions' form. (He didn't sign, and no one noticed.) I'm not a lawyer, so I often wonder, can these contracts really be enforced? And how to get around them?

Texas lawyer Joe Longley once told me that he pulled all his firm's money out of a brokerage account that started putting arbitration clauses into its contracts, which would force any disputes to be heard by a mediator rather than a jury. But then he had a hell of a time finding somewhere else to put his cash, because all the other brokerage firms were doing it, too. Lucky for him, he had enough money to get a company to rewrite its contract to get his business.

Most of us, though, don't have millions in the bank to leverage better contracts. So, I thought I'd start a contest of my own. I'm looking for good examples of asinine arbitration clauses and loony liability waivers, and creative (and cheap) ways of getting around them. At the end of the year, I'll tally up the submissions and present the winners with a free copy of my book and a Tortellini coffee mug.

Here's my first nominee, the Deer Valley resort summer adventure camp release form. In order to pay hundreds of dollars to enroll your defenseless toddler in this Utah ski resort program, you first have to sign a form acknowledging that rollerblading, etc. can kill, and then agree that:

I ASSUME ALL RISKS OF INJURY OR DEATH which may be associated with and/or result from my Children’s participating in the Summer Adventure Camp, and I hereby release Deer Valley from any liability, claims, demands, actions and causes of action whatsoever for any loss, damage, injury, illness and harm of any kind and nature to my Children or any other person arising out of or related to my Children’s participation in the Summer Adventure Camp.

So basically, Deer Valley wants to bar parents from suing, even if say, a drunk teacher sends a kid to his death by knocking him off the chairlift. Maybe it's just me, but I want the people watching my kids (and getting paid for it) to worry constantly about getting sued, mostly because I think they'll be a lot more careful. In any event, these sorts of waivers never instill a lot of confidence....