Product Manufacturer Cannot Use Release Against Consumer

This is an interesting decision out of Colorado.

Executive Tans operated an upright tanning booth manufactured by Sun Ergoline. Before using the booth, Savannah Boles signed a release form provided by Executive Tans that  said as follows: “I have read the instructions for proper use of the tanning facilities and do so at my own risk and hereby release the owners, operators, franchiser, or manufacturers, from any damage or harm that I might incur due to use of the facilities.” After entering the booth, several of Boles’s fingers came in contact with an exhaust fan located at the top of the booth, partially amputating them.

The Colorado Supreme Court refused to allow the manufacturer of the tanning both to assert the release as a bar to the claim.  The court rejected the traditional test for determining the enforceability of exculpatory agreements (similar but not identical to the test we use in Tennessee) and court explained that

strict products liability evolved to accommodate, and is driven by, public policy considerations surrounding the relationship between manufacturers and consumers in general, rather than any particular transaction or contract for sale. In addition to the typical inaccessibility of information and inequality of bargaining power inherent in any disclaimer or ordinary consumer’s agreement to release a manufacturer, a claim for strict products liability is also premised on a number of public policy considerations that would be flatly thwarted by legitimizing such disclaimers or exculpatory agreements. Not least among these is the deliberate provision of economic incentives for manufacturers to improve product safety and take advantage of their unique ‘position to spread the risk of loss among all who use the product.’   [Citations omitted.]
Citing both the Restatement (Second) of Torts and the Third Restatement of Torts, the court held that "that an agreement releasing a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void."
The case is Boles v. Sun Erogline, Inc.,  Case No. 08SC970 (Colo. S. Ct. Feb. 8, 2010).