You’ve probably seen those filler pieces in your local newspaper or at the end of a newscast; “Man Injured Jumping Off Roof In Superman Costume”. While you shake your head in wonder at the diversity of human intellect, give a thought to the dilemma of the business that manufactured that costume. Could that manufacturer have averted this human tragedy with an appropriately worded warning? Does that sound silly? Perhaps, but the area of product liability can be a minefield of miscues for manufacturers.
A manufacturer can be liable to the ultimate user of its products in three ways:
1. Negligent design: designing an engine with a plastic fuel tank right next to the hot exhaust manifold;
2. Negligent manufacture: manufacturing wooden trusses with a missing joint plate; or
3. Negligent failure to warn: had the would-be Superman known that the “costume does not allow user to fly” he might have avoided being injured.
Of the three sources of liability, the “duty to warn” is the broadest and presents the greatest risk of liability. Manufacturers must warn against all reasonably foreseeable risks of harm, except the blatantly obvious, not only from use of the product but the packaging as well. The warning must be communicated in a way that will reach the ultimate user of the product even if the user is not the purchaser.
The Courts expect that the manufacturer of a product has a detailed understanding of the risks associated with its use. Therefore, it is not enough for the manufacturer to provide a general warning of the potential for injury or damage if the product is used improperly. The more likely the circumstances in which harm might occur and the greater the risk of harm to the user, the more detailed must be the manufacturer’s warning. The manufacturer must identify the exact risk inherent in the use or misuse of the product and the gravity of the risk as well. For example, a warning that the user should not allow a product to come into contact with her eyes, or to flush her eyes with water after contact will be insufficient if contact with one’s eyes causes instant and permanent blindness.
Where a product is regarded as inherently dangerous, involving a serious risk of injury, Canadian courts have been moving toward a stricter standard of care. Where there is a serious risk of grave harm, even a reasonable attempt to make the risk apparent to the user could be found wanting.
There are a few things a manufacturer can do to minimize its risk:
• Anticipate the dangers associated not only with the ordinary use of a product but its ordinary misuse as well (eg. using a solvent as an accelerant to start a backyard barbecue);
• Examine product packaging and anticipate the dangers associated with its use or misuse (eg. disposing of plastic dry-cleaning bags);
• Examine the warnings used by other manufacturers of similar products. Are their warnings more comprehensive, or do they address a previously unknown danger?
• Ensure that the warning is not so detailed and comprehensive that the message is lost or diluted. Listing a stupefying list of negligible risks may cause the significant risks of harm to be lost in the crowd;
• Consider the size, colour and shape of the warning message in relation to the potential risk and the gravity of the harm. If there is a serious risk of grave injury, the warning must be obvious to the user and make that point decisively. Keep in mind that the manufacturer has a duty to warn all foreseeable users of the product. Consequently, a warning of risks involving serious harm should be affixed to the product itself as well as appearing in the user manual;
• Pay attention to and track consumer complaints about the product. A manufacturer has an ongoing duty to warn users of potential dangers in the use of a product that are discovered after the product has left the factory. Consider how warnings of these risks will be communicated to the public. Sending a recall notice to an original purchaser will not insulate the manufacturer from liability for injury to a user who was not an original purchaser;
• Ensure that any warnings required by provincial or federal law have been incorporated.
Reducing exposure to a products liability claim may require a larger investment in product testing or a shift in marketing strategy, but doing less these days is risky.
You have been warned.