prohibiting use that would result in death or personal injury

[Rod Dixon, J.D., LL.M.]

First of all, there is one fact that you cannot avoid: there are certain
disclaimers that will not stand up in court.

State law usually controls this issue. I represented a client in a contract
dispute and I got the disclaimer my client did not like thrown out fairly
easily. Consumer protection laws, common law, and various state statutes all
provide ways to avoid the impact of a disclaimer.

The bottom line is that doing business requires that some risks be shared by
"buyer" and "seller." The common practice seems to be that many licenses
disclaim as much risk of liability as possible, despite the drafters'
awareness that some of the disclaimers may not be enforceable. This may be
the best approach.

Water rafting may be considered "inherently dangerous," if so, the company's
approach was probably backed by years of experience dealing with lawsuits
for personal injury or death. Similarly, if you do not explicitly forbid use
of your software for life-safety-systems (which is not what you seem to
desire), then you cannot disclaim all risks for this use...even when you
disclose the risks.(Take note of some of the tobacco company lawsuits where
disclosure of the surgeon general's warning means very little today in terms
of avoiding risk of loss). The cost of doing business can be very high, if
you get the wrong jury.

If this is a serious risk for you, you may want to think about offering a
list of disclosures regarding the risks and re-think how "open" you want to
be regarding life-safety-systems.


> -----Original Message-----
> From: Justin Wells [mailto:jread at semiotek.com]
> Sent: Monday, July 24, 2000 12:34 PM
> To: license-discuss at opensource.org
> Subject: Re: prohibiting use that would result in death or personal
> injury
>
>
>
> Refresher: what we're talking about is whether or not you can get away
> with "do not use this software for life-safety systems" in an opensource
> license (violating fields of endeavour) and if you don't disclaim
> that, are you open to unlimited liability.
>
> In my jurisdiction, and from my understanding in many others, there are
> some things you either just can't disclaim liability for, or else it's
> very very difficult to do. I'm not a lawyer, I don't know the details.
>
> I do know that when I went white water rafting the rafting company made
> me write out in my own handwriting a long statement saying that I knew I
> was risking my life, I'd been warned of the dangers (they made me write
> out by hand what they were) and if anything happened to me it was
> my own fault. The rafting company was under the impression that
> anything short of having that written out in my own handwriting, listing
> the specific risks I was taking, might not stand up in court.
>
> Presumably sticking this on the raft would NOT have worked:
>
>    Do not use this raft unless you agree to all of the following
>    conditions. If you die or are personally injured while using this
>    raft you agree not to hold us liable for your loss.
>
> Which is more or less what an "opensource raft license" would do. The
> alternative is to write "Do not use this raft where there is any risk
> of death or personal injury" on the raft--but that gets into fields of
> endeavour problems with the OSD.
>
> But, maybe if I put in this kind of language:
>
>    This raft was not designed or intended for whitewater rafting,
>    or for use in any situation where there is a risk of death or
>    personal injury. We are not liable if you use this raft for
>    purposes other than those it was designed and intended for.
>
> maybe that gets me off the hook without actually forbidding you from
> trying it. I don't know. It's worth finding out.
>
> I can see why the law does this. I can imagine a slum landlord forcing a
> poverty-stricken family to sign some awful disclaimer saying that the
> landlord was not liable for any deaths resulting from the horrible
> condition of the property. I can see why the courts wouldn't want to
> make that an easy thing to do--but in an opensource license, it's
> causing me some grief.
>
> Justin
>
>