Anderson v. Ashland Rental, Inc. , 122 Or. App. 508 ( 1993 )

RIGGS, J.

Plaintiff, a house painter, rented scaffolding from defendant. He signed a two-page contract. The first page contained the following disclaimer:

“[Defendant] shall not be liable for any damage suffered by [plaintiff] resulting from non-performance or faulty performance of the equipment, including but not limited to poor-work [sic] product, time loss, inability to perform the task or any other cause whatsoever.”

The back of the contract contained a similar disclaimer. While plaintiff was on the scaffolding, it tipped over, injuring him. He filed a complaint alleging negligence and strict liability. Defendant moved for summary judgment and attached a copy of the rental contract. The trial court found that the disclaimer of liability was conspicuous as a matter of law, ORS 71.2010(10), and barred plaintiff s claim. Defendant’s motion for summary judgment was granted. Plaintiff appeals, and we reverse.

On appeal, plaintiff argues that the grant of summary judgment was error, because the disclaimer was inconspicuous and did not limit defendant’s liability. A disclaimer in a contract can limit tort liability if it was either bargained for, brought to a party’s attention or conspicuous. Atlas Mutual Ins. v. Moore Dry Kiln, 38 Or App 111, 114, 589 P2d 1134 (1979). Here, the dispositive issue is whether the disclaimer was conspicuous.

ORS 71.2010(10) provides the statutory definition of the term “conspicuous”:

“A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals * * * is conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. * * * Whether a term or clause is ‘conspicuous’ or not is for decision by the court.”

The question of whether or not a disclaimer is conspicuous is a question of law. Duyck v. Northwest Chemical Corp., 94 Or App 111, 116, 764 P2d 943 (1988), rev den 307 Or 405 (1989). Our analysis begins with the appearance of the disclaimer and the surrounding text. The first page of the contract is a typographical nightmare. The following print sizes were used on the first page: 6 point, 7 point, 8 point, 9 point, 10 point, 11 point and 14 point.¹ In addition to a hodgepodge of print'sizes, the contract uses various attention-getting devices, including bold type, capital letters, red type and reverse lettering.² The back of the contract is printed in type that is so light that it is barely legible.

Turning to the disclaimer on the front page, we must consider whether it is “so written that a reasonable person against whom it is to operate ought to have noticed it.” ORS 71.2010(10). The disclaimer is printed in 7 point type, only slightly larger than the 6 point type used for the “fine print.” The caption “Warranty Disclaimer” is in bold 8 point blue type, but its visual impact is minimized by adjacent captions printed in 8 point, bright red capital letters. The disclaimer is not printed in a “larger or other contrasting type or color” that would make it conspicuous. We conclude that, as a matter of law, the disclaimer on the front page is not conspicuous.

Defendant argues that an instruction to “READ BOTH SIDES BEFORE SIGNING” in 8 point reverse lettering, at the bottom of the page, met the statutory criteria for conspicuousness. ORS 71.2010(10). Even if we agreed that the message was conspicuous despite its proximity to much larger, more visible type, it does not necessarily follow that the disclaimer on the back side was conspicuous. That disclaimer was one of eight sections, all printed in the same, faint type, with identical headings. The second disclaimer was barely legible and fell far short of the ORS 71.2010(10) criteria.

Because we conclude that both disclaimers were inconspicuous as a matter of law, we need not address plaintiffs other assignments of error.

Reversed and remanded.

1 To put these measurements in perspective, 6 point type is the proverbial “fine print,” while 14 point type is approximately 1/4 inch in height and is very easy to read.

2 “Reverse lettering” is a technique where the type is reproduced by printing the background of the letters rather than the letters themselves.