If you allow the provider of a product or service to contract away their liability, I predict in most cases they will create a standard form contract that they require all customers to sign that transfers 100% of the liability to the customer in ~all circumstances, which presumably defeats the purpose of assigning it to the provider in the first place.
Yes, customers could refuse to sign the contract. But if they were prepared to do that, why haven’t they already demanded a contract in which the provider accepts liability (or provides insurance), and refused to do business without one? Based on my observations, in most cases, ~all customers sign the EULA, and the company won’t even negotiate with anyone who objects because it’s not worth the transaction costs.
Now, even if you allow negotiating liability away, it would still be meaningful to assign the provider liability for harm to third parties, since the provider can’t force third parties to sign a form contract (they will still transfer that liability to the customer, but this leaves the provider as second-in-line to pay, if the customer isn’t caught or can’t pay). So this would matter if you’re selling the train that the customer is going to drive past a flammable field like in the OP’s example. But if you’re going to allow this in the hospital example, I think the hospital doesn’t end up keeping any of the liability John was trying to assign them, and maybe even gets rid of all of their current malpractice liability too.
If you allow the provider of a product or service to contract away their liability, I predict in most cases they will create a standard form contract that they require all customers to sign that transfers 100% of the liability to the customer in ~all circumstances, which presumably defeats the purpose of assigning it to the provider in the first place.
Yes, customers could refuse to sign the contract. But if they were prepared to do that, why haven’t they already demanded a contract in which the provider accepts liability (or provides insurance), and refused to do business without one? Based on my observations, in most cases, ~all customers sign the EULA, and the company won’t even negotiate with anyone who objects because it’s not worth the transaction costs.
Now, even if you allow negotiating liability away, it would still be meaningful to assign the provider liability for harm to third parties, since the provider can’t force third parties to sign a form contract (they will still transfer that liability to the customer, but this leaves the provider as second-in-line to pay, if the customer isn’t caught or can’t pay). So this would matter if you’re selling the train that the customer is going to drive past a flammable field like in the OP’s example. But if you’re going to allow this in the hospital example, I think the hospital doesn’t end up keeping any of the liability John was trying to assign them, and maybe even gets rid of all of their current malpractice liability too.