A disclaimer is a statement that tries to deny legal responsibility. When a retailer sells something “as is” or warns that “results may vary” when you use a product, they’re issuing a disclaimer. Manufacturers and retailers sometimes try and use disclaimers to defend themselves against defective product lawsuits. While these arguments are generally ineffective, it’s important to understand how disclaimers can impact your product liability claim. 

An Overview of Virginia Product Liability 

In Virginia, manufacturers, distributors, and retailers must offer products that are reasonably safe when used for foreseeable purposes. For example, a chair is meant for sitting, but people also often stand on chairs and use them in other unintended ways. Even though chairs are technically only designed for sitting, manufacturers have a responsibility to consider how people might use their product and then make it as safe as possible. 

However, although manufacturers need to make their products safe for typical use, they’re not responsible for making them 100% fool-proof. If someone straps a bunch of helium balloons to a chair, flies around the neighborhood, and gets hurt, that is not necessarily the type of use that any reasonable manufacturer could have predicted for a chair. 

If standing on a chair is at one end of the spectrum of unintended chair use (reasonable and foreseeable) and turning the chair into an aircraft is at the other end (unreasonable and unforeseeable), there are a million possible ways of using a chair that fall somewhere in between. What is reasonable and foreseeable in terms of uses for products often becomes a matter of argument, which is why product liability cases can become very complex — and why they require the expertise of an experienced attorney. 

Warranties and Product Liability 

Almost every product carries two kinds of warranty: express and implied. An express warranty is a specific promise or guarantee made about a product. Such promises can either be oral or written. 

For example, a manufacturer might claim their smartphone is waterproof. This is an express warranty. If your phone stops working after it’s submerged in water, you might have a viable claim.  

On the other hand, implied warranties are unspoken and unwritten promises that a product will meet a consumer’s expectations. There are two types of implied warranties that often come up in product liability claims: 

  • Merchantability 

Products must be usable, comply with their packaging, and be consistent in quality and quantity. Typically, this type of warranty also promises that a product will be reasonably safe for its customary uses. 

  • Fitness 

Products must meet the consumer’s specific needs if advertised to do so. For example, suppose you go to a hardware store and ask a sales clerk to help you find a saw blade that will cut through a metal pipe. If the clerk directs you to a specific product, there’s an implied warranty of fitness. If the blade is actually unsuitable for your purposes, shatters, and injures you, you might have a claim against the retailer.  

These warranties help protect consumers from harm when they use a product. And this is why manufacturers, distributors, and retailers need to anticipate harm from foreseeable misuse of a product (as well as the product’s intended use). 

RELATED ARTICLE: Think the FDA Tests Products It Approves? Think Again. 

Virginia law permits the parties to a contract for the sale of goods to disclaim or exclude all warranties and to limit the type and extent of available damages.  Though such limitations are rarely present in products liability cases, products liability attorneys must be alert to the possibility of any disclaimers or limitations.

Most General Disclaimers Won’t Protect a Manufacturer Against Product Liability Lawsuits 

Some manufacturers include broad statements on their products, asserting that buyers cannot sue for injuries related to their use. A general disclaimer might state: 

We offer this product without any guarantees or warranties, either express or implied. We do not make any claims about its safety, reliability, performance, or durability. The company is not liable for damages caused by your use or misuse of our products. 

Typically, when companies attempt to use these disclaimers to try and protect themselves from a lawsuit, courts reject these arguments.  The Virginia General Assembly severely restricts a seller’s ability to disclaim an express warranty.  Any words or conduct tending to create an express warranty will trump any disclaimer. 

Virginia does permit the seller of a product to disclaim or modify both the implied warranty of merchantability and the implied warranty of fitness for a particular purpose.  A disclaimer of the former must specifically use the word “merchantability” and must, if in writing, be conspicuous.  Burying the disclaimer in the fine print will not be effective.  On the other hand, a disclaimer of the implied warranty of fitness need only state that “[t]here are no warranties which extend beyond the description on the face hereof.” Thus, disclaimers, while rare, can play a crucial role in your products liability case. 

If you’ve been injured by a product in Virginia and you need help understanding the validity of a disclaimer, contact the experienced product liability attorneys at Phelan Petty immediately. 

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Some Product Disclaimers Are Actually Warnings 

Manufacturers frequently place warnings on their products, but these notices don’t remove liability. Instead, they notify consumers that a specific risk is involved with a product’s use. 

For example, your car’s entertainment system might warn you not to interact with it while you’re driving. Or your toaster might come with a warning that you risk electrocution if you submerge the toaster in water.  

Here, the product’s manufacturer isn’t necessarily trying to disclaim liability. Instead, they’re building up their defenses. The manufacturer typically can’t be held responsible for your injuries if they can prove two things: 

  1. Assumption of risk: You were aware of a specific injury risk created by a product and you still used the product in a way that exposed you to that risk. 
  2. Misuse: You altered or used the product in a way that was not foreseeable. 

These defenses require detailed analysis from the plaintiff’s attorneys. Much like disclaimers, not every warning is sufficient because companies must anticipate certain levels of foreseeable misuse. 

In general, you should never give up on a product liability claim because of a disclaimer before you talk with an experienced attorney. At Phelan Petty, we offer free initial consultations for product liability cases, so there’s no risk to calling us and scheduling an assessment of your case if you’ve been injured. 

Phelan Petty: Helping Defective Product Victims in Virginia 

Product liability claims involve a complex balance of legal, technical, and medical knowledge. At Phelan Petty, we focus on catastrophic defective product claims, such as cases involving lithium-ion battery fires and explosions, defective car parts, and unsafe medical devices. We apply our product liability experience and our aggressive, focused approach to demand fair compensation for our clients.  

To schedule your free, no-risk consultation with one of our attorneys, complete our online form or call us at (804) 980-7100. 

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.