We hear a lot about organizations and individuals taking measures to limit their legal liability. When we go to the gym and put our personal items in a locker, there’s a sign warning that the gym “is not responsible for lost or stolen items.” Some trucks hauling certain kinds of materials will have signs on the back of the vehicle declaring the company the trucker drives for is “not responsible for damage to windshields.” Sometimes nondisclosure agreements can be used as an attempt to limit legal liability as well, especially if a company wants to ward off both bad publicity and additional lawsuits. But here’s another thing about signs, warnings, and even NDAs: they don’t always hold up in a court of law.
Holding someone responsible
A company can post a sign to try and absolve itself of lots of things. A restaurant cold post a sign that says, “Not liable for any cases of food poisoning,” and hope it deters customers from complaining if their dinner makes them sick. That sort of sign is not going to deter the local health department from investigating the restaurant and issuing citations if the location is doing something it’s not supposed to be doing. There are certain rights that people can’t give up just because they see a sign telling them they never had the right to begin with. The signs can be effective, though, if 90 percent of people who see the sign decide it’s not worth making a fuss.
If you’re riding a motorcycle behind a truck hauling debris from a construction site, and if some of that debris blows out and hits your motorcycle, which then causes you to lose control and wreck your vehicle, you may very well have a case against the company responsible for the truck. If you start calling motorcycle accident lawyers and asking for consultations, none of them are going to say, “Oh, well, this is clearly negligent, but they had a sign, so I guess you’re on your own. Bye!”
David vs. Goliath
There’s often a power imbalance when regular citizens try to sue large organizations, or even just very rich individuals. The side with all the lawyers and all the money can use all those billable hours to stall for time and try to frustrate the plaintiffs into dropping their suit. They may try to claim an NDA is enforceable even if it clearly violates state law, because they have enough time to throw a lot of arguments at the wall and see which ones stick. One upcoming battleground to watch is the fight over who is responsible for the opioid crisis. States like New Jersey have set up task forces to address the opioid epidemic, and other states are looking at taking legal action. In fact, Alabama just filed a federal lawsuit against the makers of Oxycontin that alleges the drug company engaged in deceptive marketing. The states will argue that the drug companies should have known better, while the drug companies might argue that it’s not their fault if people in pain develop addictions to their products. As usual, it will be up to the courts to decide who has the more compelling argument.