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Defendants Can’t Make You Waive Strict Liability Claims


We have written in the past about exculpatory clauses, or what many people like to call “hold harmless agreements.” These are agreements that make you agree that should a property owner be negligent, and should you get injured because of that negligence, that you agree that you cannot and will not sue them.

These clauses are enforceable—although there are some exceptions and ways around them. Still, they can create a difficulty, and in some cases, a judge may rule that your injury case is barred because of them.

What About Strict Liability?

But many of these agreements try to hold the Defendant harmless not just for negligence, but for strict liability.

Strict liability is a theory of liability that allows a victim to hold a Defendant liable for injuries, even if the Defendant did nothing wrong, and even if the Defendant acted reasonably. The victim still needs to show that he or she was injured, and that the injury was caused by the Defendant, but strict liability allows a victim to bypass the need to show what the Defendant should have done, or what the Defendant did not do.

Strict liability cannot be used in every kind of accident case. Traditionally, it has been used in products liability cases, but also in dog bite cases, and where someone is injured by an inherently dangerous activity, such as on a construction site, or using a dangerous item, or handling electricity or firearms.

Can Strict Liability be Waived by a Contract?

In a recent case, the Florida Supreme Court had to determine whether or not a hold harmless agreement applied to a strict liability action brought by the victim. The case arose when a young man was injured on a defective motorcycle. Strict liability applies to products liability cases

In this case, because the allegation was that the product was defective or faulty, the victim was suing under strict liability, but the victim had also signed a hold harmless agreement with the dealer, an agreement the dealer sought to enforce as a defense to the injury case. The hold harmless did release the dealer from liability for negligence—but it said nothing about strict liability.

Court Says You Can’t Waive Strict Liability

But looking at the importance of strict liability, the Supreme Court denied the dealership. The Court said that Florida law will not allow someone in the stream of commerce to protect itself from a products liability claim (or any strict liability claims, for any other kind of accidents), through the use of a contractual provision. This, the court said, was a matter of public policy.

The court noted the purpose of strict liability: to put the burden and costs on manufacturers of defective products, as opposed to consumers and end users, who are powerless to know what may be dangerous when they purchase or use a product.

Contact the Miami personal injury attorneys at Velasquez & Associates P.A. for help today if you have been injured, even though you may have signed a waiver or a hold harmless agreement.




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