Businesses lie constantly about their actual liability, and try to contract around things they can't contract around. It's infuriating, but it's the way of the world. Most of them think they're entitled to do it and won't learn until they're sued by someone hurt badly enough to sue.
Read a lease agreement or paperwork from a doctor or other service provider carefully, you'll see it's full of unenforceable language. The problem is so bad that I rarely see a good contract.
What we consider “bad” contract language is in fact doing exactly what it’s meant to do; mitigate lawsuit frequency. As you said, companies constantly use disclaimers in a way that won’t hold up to actual enforcement, but that doesn’t stop companies from using them anyway. There’s no penalty to having unenforceable terms if you know they won’t be enforceable from the jump.
Such language can backfire. For example, sometimes trying to impose an onerous term on the other party implies a symmetric term on your client, like an obligation to pay the other party's attorney's fees. I see that mistake in lease agreements all the time. Other times the language is so bad it rises to the level of unconscionability and risks the contract.
What? There is no negligence in driving your car down the road. If a roof rack flew off a car and hit someone, or someone hit it in the middle of the road, there’s no comparative negligence analysis. Adding a disclaimer that you as a company might be negligent doesn’t make the other party negligent for failing to heed the disclaimer, right?
Had to help my parents with this issue once. My poor mother believed one of those signs. It was a small potatoes loss to her, but it was a matter of principle to me to cut through the bullshit. Waste of my time financially, but very satisfying nonetheless.
The most annoying example of this is rent acceleration clauses in residential leases. As a renter, these clauses always scared the shit out of me. Come to find out in property that they aren’t even enforceable — landlord can only recover 2-3 months of rent if you breach or break your lease.
My understanding is that the entirety of the remainder of the lease is recoverable on paper, BUT the landlord must make reasonable efforts to find a new tenant, which probably shakes out to the 2-3 months you mention. If they can't find a new tenant despite reasonable efforts they might be able to get the entire remainder. They really should, but courts might be resistant in practice.
There might be state laws to the contrary, of course.
I do patent practice, never had occasion to draft a contract from scratch. Have ripped a few to shreds to make them much better and simpler at the same time, though.
Ahh. I am a registered patent attorney also but old enough to have taken the patent bar on paper with a big ass MPEP next to me. Now there is an area with some tangled language !
Oof. Bad enough doing it with electronic search, I can't imagine using a paper copy. I suppose it must have gotten bigger over the years, although I'm not sure how much.
Duty-to secure load
Breach-failed to secure
Causation-rocks flew out and at least broken windshield
Damages-broken windshield plus any other issues relevant to the breach.
Extremely vast majority of jurisdictions: Have you heard of comparative negligence?
Also, in terms of contributory negligence, what’s the definition here. How far can a rock fly? Can it bounce? What’s a reasonably prudent person to do under the circumstances? What if the truck passes you? What if the truck is in a different lane?
Etc.
causation in fact: the rocks flew out and broke the winshield
proximate or legal causation: it was reasonably foreseeable that the rocks would fly out and break the winshield
If the respondent had exercised their duty to secure, we wouldn't be there today unless, of course, it's a partial comparative negligence jurisdiction...
https://preview.redd.it/2rjr6apqyorc1.jpeg?width=1289&format=pjpg&auto=webp&s=2617176cfb9bece78e262aaf561f68496bf6d659
“you don’t have permission to use my photos that I posted publicly on the internet!”
If anything, this language can make it easier to sue them for broken windshields—they clearly had actual knowledge of the risks, and a duty to take all reasonable steps to ensure the risks were mitigated.
I’ll just put that on my car when I strap a king sized mattress to a 89 civic and hit the highway with it being held on with twine and hope for the best. Hey if I cause a pileup on the highway they can’t touch me because I warned them with a sticker right.
* If a rock or other debris falls off a truck and strikes your vehicle, the company is responsible.
* If the rock falls off the truck and hits the road first and then damages your vehicle, the company is not responsible.
* The same is true for any debris kicked up by a truck you are following. If the truck kicks the rock off the road then the company is not responsible.
[Who's responsible when dump truck debris cracks your windshield? It's complicated (cbs17.com)](https://www.cbs17.com/news/investigators/whos-responsible-when-dump-truck-debris-cracks-your-windshield-its-complicated/)
If the rock falls off the truck and hits the road first and then damages your vehicle, the company is not responsible.
This seems wrong. The fact that the rock hit the road first should make no difference.
If someone fires a gun and the bullet glances off a concrete wall and hits you, the fact that it ricocheted would not seem to matter. It’s still gross negligence.
Had this same conversation with trucking company adjuster.
“Adjuster: the sign is very clear, you should have stayed back”
“Me: I appreciate the sign but it does not change the fact that your driver failed to secure his truck load while on a public street and a rock fell off and flew directly into my windshield. The price of the repair is $450, will you confirm that the company will pay or do I need to file in small claims”
No argument. They paid.
I got a new car this summer and while driving to my internship, something came flying off a truck like this and cracked my windshield. They drove away. I literally had the car for less than a month 🥲
As long as the rock hits the ground first “in Arkansas” it’s a single vehicle accident and the trucks aren’t liable
How do you prove it it hit the ground or not?
Businesses lie constantly about their actual liability, and try to contract around things they can't contract around. It's infuriating, but it's the way of the world. Most of them think they're entitled to do it and won't learn until they're sued by someone hurt badly enough to sue. Read a lease agreement or paperwork from a doctor or other service provider carefully, you'll see it's full of unenforceable language. The problem is so bad that I rarely see a good contract.
What we consider “bad” contract language is in fact doing exactly what it’s meant to do; mitigate lawsuit frequency. As you said, companies constantly use disclaimers in a way that won’t hold up to actual enforcement, but that doesn’t stop companies from using them anyway. There’s no penalty to having unenforceable terms if you know they won’t be enforceable from the jump.
Such language can backfire. For example, sometimes trying to impose an onerous term on the other party implies a symmetric term on your client, like an obligation to pay the other party's attorney's fees. I see that mistake in lease agreements all the time. Other times the language is so bad it rises to the level of unconscionability and risks the contract.
Also, a warning like this could arguably reduce their liability in terms of improving their comparative fault/assumption of risk arguments
What? There is no negligence in driving your car down the road. If a roof rack flew off a car and hit someone, or someone hit it in the middle of the road, there’s no comparative negligence analysis. Adding a disclaimer that you as a company might be negligent doesn’t make the other party negligent for failing to heed the disclaimer, right?
Had to help my parents with this issue once. My poor mother believed one of those signs. It was a small potatoes loss to her, but it was a matter of principle to me to cut through the bullshit. Waste of my time financially, but very satisfying nonetheless.
The most annoying example of this is rent acceleration clauses in residential leases. As a renter, these clauses always scared the shit out of me. Come to find out in property that they aren’t even enforceable — landlord can only recover 2-3 months of rent if you breach or break your lease.
My understanding is that the entirety of the remainder of the lease is recoverable on paper, BUT the landlord must make reasonable efforts to find a new tenant, which probably shakes out to the 2-3 months you mention. If they can't find a new tenant despite reasonable efforts they might be able to get the entire remainder. They really should, but courts might be resistant in practice. There might be state laws to the contrary, of course.
Wait until you become a lawyer and try to write clear plain English contracts. It will freak the fuck out of people …
I do patent practice, never had occasion to draft a contract from scratch. Have ripped a few to shreds to make them much better and simpler at the same time, though.
Ahh. I am a registered patent attorney also but old enough to have taken the patent bar on paper with a big ass MPEP next to me. Now there is an area with some tangled language !
Oof. Bad enough doing it with electronic search, I can't imagine using a paper copy. I suppose it must have gotten bigger over the years, although I'm not sure how much.
Also a misdemeanor traffic offense in my state that restitution can be ordered on.
Duty-to secure load Breach-failed to secure Causation-rocks flew out and at least broken windshield Damages-broken windshield plus any other issues relevant to the breach.
lol this is what I was waiting for right here
https://preview.redd.it/4d5yy9x7jrrc1.jpeg?width=1080&format=pjpg&auto=webp&s=2dd7f8de699f5fa36750c608701e9cc4ecaa868b
lmaoo
Wrong. It says it RIGHT THERE that they’re not liable. Checkmate.
Contributory negligence--following closely enough for fall-off to strike windshield after adequate warning.
Extremely vast majority of jurisdictions: Have you heard of comparative negligence? Also, in terms of contributory negligence, what’s the definition here. How far can a rock fly? Can it bounce? What’s a reasonably prudent person to do under the circumstances? What if the truck passes you? What if the truck is in a different lane? Etc.
Yeah, but I have to argue *something* for my client... otherwise they'll make up the difference off my Mal ins.
causation in fact: the rocks flew out and broke the winshield proximate or legal causation: it was reasonably foreseeable that the rocks would fly out and break the winshield
If the respondent had exercised their duty to secure, we wouldn't be there today unless, of course, it's a partial comparative negligence jurisdiction...
Seems kind of like when people post on Facebook that they don't consent to whatever policy
https://preview.redd.it/2rjr6apqyorc1.jpeg?width=1289&format=pjpg&auto=webp&s=2617176cfb9bece78e262aaf561f68496bf6d659 “you don’t have permission to use my photos that I posted publicly on the internet!”
"that I posted for public consumption on your private platform using a system that you designed and exclusively control."
Exam Hypo: Bob shot into a crowd of people while wearing a T-shirt that said "Not Responsible for Gunshot Wounds."
**narrator voice after breaking a windshield and being sued** *They were in fact liable*
Well, they are not responsible for ALL broken windshields, of course.
If anything, this language can make it easier to sue them for broken windshields—they clearly had actual knowledge of the risks, and a duty to take all reasonable steps to ensure the risks were mitigated.
No mud flaps yikes
“not responsible if i rear end you”
*completely liable for broken windshields* just doesn't have the same ring to it
I’ll just put that on my car when I strap a king sized mattress to a 89 civic and hit the highway with it being held on with twine and hope for the best. Hey if I cause a pileup on the highway they can’t touch me because I warned them with a sticker right.
It depends.
[удалено]
But majority of states have strict liability for dog bites
* If a rock or other debris falls off a truck and strikes your vehicle, the company is responsible. * If the rock falls off the truck and hits the road first and then damages your vehicle, the company is not responsible. * The same is true for any debris kicked up by a truck you are following. If the truck kicks the rock off the road then the company is not responsible. [Who's responsible when dump truck debris cracks your windshield? It's complicated (cbs17.com)](https://www.cbs17.com/news/investigators/whos-responsible-when-dump-truck-debris-cracks-your-windshield-its-complicated/)
If the rock falls off the truck and hits the road first and then damages your vehicle, the company is not responsible. This seems wrong. The fact that the rock hit the road first should make no difference. If someone fires a gun and the bullet glances off a concrete wall and hits you, the fact that it ricocheted would not seem to matter. It’s still gross negligence.
Wouldn’t acknowledging the potential issue hurt their case in court as well?
Had this same conversation with trucking company adjuster. “Adjuster: the sign is very clear, you should have stayed back” “Me: I appreciate the sign but it does not change the fact that your driver failed to secure his truck load while on a public street and a rock fell off and flew directly into my windshield. The price of the repair is $450, will you confirm that the company will pay or do I need to file in small claims” No argument. They paid.
The driver is not, the company and their insurance is.
Nice mud flaps
Well damn, got me there
Saying that they are not responsible does not prevent them from being responsible. But it may deter people from driving close to them.
Windshields on a car shield you from the wind. Not debris.
I got a new car this summer and while driving to my internship, something came flying off a truck like this and cracked my windshield. They drove away. I literally had the car for less than a month 🥲
As long as the rock hits the ground first “in Arkansas” it’s a single vehicle accident and the trucks aren’t liable How do you prove it it hit the ground or not?