Of course, a manufacturer or retailer can find ways to avoid liability, and contractual law is the perfect tool for such instances. One can include an exculpatory agreement clause on the service providing contract, or in the sales contract.

The aim of exculpatory agreements is to set concrete limits regarding the liability of a service provider, in turn shifting the burden of possible risks to the customer. By signing the contract, the client accepts all the risks that the activity may result in.

This practice was being overruled by courts since legal institutions understand that the clients are greatly disadvantaged when compared to the service providers. Under exculpatory agreements, the manufacturer or retailer controls which party assumes which risks. For this purpose, the courts have constructed some guidelines to determinate when such a clause might be considered unacceptable. These factors are called Tunkl factors. If they are present, the courts would not enforce the agreement. For instance, see the following examples:

• When one is in dealings with a business that is subject to special regulations, usually applicable in very technical situations, which would make it complicated for a regular individual to prove a claim.
• Service is of great importance to the public or is a matter of public necessity. The rationale behind this factor incorporates the idea that certain categories are too essential for the community, and for that reason, a service provider cannot delegate the risks to the consumer.
• The service provider has superior bargaining power or the agreement is a contract of adhesion; the victim had no opportunity to bargain for protection from the risk. Under this kind of contract, the consumer can only choose to sign the contract or not have access to the service since all the clauses are dictated by the service provider.

Because the consumer cannot have any bargaining power to modify the conditions, it is advisable to omit exculpatory agreements whenever possible. Such contracts are inequitable and otherwise unfair to the consumer.

Is there any defense for manufacturers when the court refuses to enforce an exculpatory agreement? Yes, a company can argue that the client assumed the risk at the moment the contract was signed and made effective.

There are times when individuals knowingly engage in reasonably dangerous activities offered by a third party. If a consumer is harmed, he or she has to endure that injury as a result of the activity that he or she took part in. This is the case for most sports. For instance, we cannot imagine a football player filing a lawsuit against the opposing team for a knee injury. The same is true regarding other injuries suffered by the consumer that are an inherent risk to the activity, and that were not provoked by a special, negligent action performed by the service provider. For example, if a customer of a skiing establishment gets hurt while skiing, one cannot sue the resort unless the reason for the accident was the lack of a proper sign, warning that the trail is ending.