Pre-Injury Waiver Must be Unmistakeably Clear

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Jessica Kruger, a doTERRA International, LLC (doTERRA) distributor or Wellness Advocate, purchased a doTERRA product and applied it to her skin before visiting a tanning salon. Shortly thereafter, Kruger was diagnosed with second and third-degree chemical burns. In doTERRA International, LLC v. Jessica Kruger, 2021 UT 24, No. 20191040, Supreme Court Of The State Of Utah (July 1, 2021) the Supreme Court was asked to allow a pre-injury waiver of punitive damages.

ZALMA OPINION

Waiver, to be enforceable, must be intentional, knowing, clear, unambiguous and unmistakable. To give up an important right like the right to sue for punitive damages for the sale of a dangerous product without warning about its propensity to cause burns if applied to a human body that is then exposed to sun or a tanning bench requires knowledge. She waived some damages as a seller of the product but not to be the victim of second degree burns.