Can a ToS Stop You From Suing for Personal Injury?

Understanding the legal power—and limits—of Terms of Service agreements in personal injury cases.

We’ve all agreed to companies’ terms of service. They’re so ubiquitous that you likely don’t even think about them—it’s that little checkbox that says “I agree” before you can proceed in making a purchase, paying a bill, downloading an app, or numerous other things in your daily life. 

But checking that little box to “agree” with the terms of service can affect a personal injury lawsuit if the service you’re agreeing to ends up causing harm. 

Terms of Service (ToS) agreements are more than just formality; they can have real consequences, especially if you’re injured while using a product, app, or service. In some cases, these agreements limit or even eliminate your right to file a personal injury lawsuit—and sometimes they’re not enforceable. Courts are increasingly scrutinizing these agreements, especially when they disadvantage consumers. If you’ve suffered harm because of an app or digital service, don’t assume the ToS prevents you from recovering through a successful lawsuit; the only way to know for sure is to consult a personal injury lawyer. 

First, what is a Terms of Service agreement, anyway?

What is a Terms of Service agreement?

Terms of Service is a broad legal agreement that governs the use of a product, service, website or app. It sets forth user rights, company obligations, dispute resolution procedures, privacy policies, and sometimes liability disclaimers.

Is a ToS the same as a liability waiver?

No. A liability waiver is a focused legal document that waives a person’s right to file a lawsuit for certain injuries, risks or damages. Typically, these relate to physical or high-risk activities like gyms, trampoline parks, amusement parks, etc. Read more: Do Liability Waivers Actually Work? 

The ToS can overlap with a liability waiver, but they serve different legal functions. 

A ToS agreement is usually signed when using a website or online platform, or when downloading an app or signing up for a digital service like ride-sharing or streaming. By contrast, a liability waiver is often required before engaging in a physical activity, like participating in a sport or fitness class, or doing an adventure activity, taking an organized trip, and so on. A liability waiver is usually signed in person or digitally before the activity begins, whereas a ToS can be accepted with a checkbox or click.

For example, you likely checked the agreement for the ToS if you have an account with Uber or Amazon. This could include arbitration clauses or disclaimers of liability for delays or injuries. However, if you go rock climbing at an indoor gym, you’ll likely be asked to sign a waiver agreeing not to file a lawsuit against the business if you’re injured during the activity.

What does a ToS agreement include?

A ToS agreement is between a user and a service provider. It typically outlines the rights, responsibilities, and limitations of each party. A ToS will often include:

However, when these legal tools are used for risk management, they can sometimes be unfair or one-sided, especially when they are buried in the fine print of an agreement.

How terms of service limit personal injury claims

1. Mandatory arbitration clauses

A mandatory arbitration clause requires the user to resolve disputes through private arbitration, rather than through the court system. This is significant because:

• Arbitration proceedings are confidential, which might conceal widespread product issues. 
• Arbitration often favors corporations, as the arbitrator could be selected by the company and have an ongoing relationship. 
• An arbitration proceeding typically has no jury, yet is binding based on the arbitrator’s decision.

2. Waivers of liability

A ToS agreement might include a disclaimer or waiver that the user “assumes the risk” and agrees not to hold the company liable for certain injuries, even if they are the result of the company’s own negligence. 

Typically, ToS cannot waive gross negligence or intentional harm. However, basic negligence might be covered in the waiver, depending on state laws.

For example, if a person is injured doing exercises recommended by a fitness app, the app might not be responsible, even if the instructions are poorly written or dangerous.

3. Class action waivers

A ToS agreement will often include language that prohibits a group of users from joining together in a class action lawsuit. This could become important if a defective product or app feature injuries multiple people in a similar way, or if the cost of an individual lawsuit outweighs the potential reward. If a class action is prohibited, a user could be forced into individual arbitration as their only recourse, even if the alleged harm was systemic.

4. Choice of law and forum clauses

A company may use its ToS to control where a lawsuit against it could be filed, which then determines which state’s laws will decide the outcome. This could force a plaintiff (victim) to file the lawsuit in a jurisdiction that’s far from and inconvenient to where they live. It might also require that the lawsuit be filed in a state with laws that are less consumer-friendly than others.

5. Assumption of risk

The assumption of risk doctrine is a typical defense that argues the plaintiff accepted the risk associated with using the product or service. However, the assumption of risk defense doesn’t always hold up, especially if the risks weren’t clearly communicated or the harm wasn’t reasonably foreseeable.

How do courts evaluate ToS claims for personal injury lawsuits?

The court is more likely to enforce the ToS if...	The court might reject the ToS if...
The user affirmatively agreed (i.e., they clicked “I agree.”)	The agreement was buried in the fine print or not clearly presented
The terms were clearly presented	The clause shocks the conscience (e.g., attempts to waive liability for fraud or gross negligence)
The clauses are not unconscionable or contrary to public policy	The plaintiff was a minor or otherwise incapable of providing legal consent

What to do if you were injured by a Terms of Service agreement

1. Preserve the evidence. Save any screenshots of the ToS (or, download if possible), along with the date you clicked agreement, and how it was presented.
2. Consult a lawyer. An attorney can analyze whether the terms are enforceable and whether you still have a claim.
3. Challenge unfair clauses. A court might strike down a specific portion of a ToS that it decides has gone too far.
4. Join other plaintiffs. If other plaintiffs suffered similar injuries for the same reason, you might be able to join a class action or build public pressure to effect change.
5. File consumer complaints. An agency like the FTC might intervene if there are deceptive practices that are detrimental to consumers.

A Terms of Service agreement can have serious consequences for your legal rights after an injury. Arbitration clauses, waivers, and other limitations might feel like they slam the door on your ability to recover damages—but they aren’t always enforceable. Courts are increasingly scrutinizing these agreements, especially when they disadvantage consumers.

If you’ve been hurt by an app or digital service, don’t assume the ToS is the final word—talk to a personal injury lawyer to evaluate your options.