Liability for Defective Products: Can A Victim’s Own Actions Hurt A Case?
Written By: Jordan Assaraf, Lawyer If you suffer an injury, there are probably many questions going through your mind: How long will it take for me to recover? Will I need any special treatment or care? And, who, if anyone is to blame for whatever caused the injury? Sometimes we attribute injuries to unfortunate accidents that were simply not foreseeable. Perhaps we might acknowledge that we, ourselves, were careless. But when another person’s or entity’s actions cause us harm, that person or entity could be liable for the damages we sustain. In this blog post, first I will touch upon how manufacturers or vendors of defective products can be held liable for negligence causing harm. Next, I will point out some possible defenses, including a victim’s own contributory negligence, that could undermine damages or entirely shield the defendant from liability. I will conclude by highlighting why it may be worth your while consulting with a personal injury lawyer with a view to investigating the circumstances of your specific case and determining whether to pursue a legal action for damages. Proving Negligence in Defective Product Cases Although liability in some defective product cases may be based on contract law or statute law, most cases are based on tort law in which the injured plaintiff must establish that the defendant was negligent in the design, manufacture or distribution of a product, and that the defendant’s negligence caused or contributed to the plaintiff’s injuries and losses. There are certain jurisdictions with ‘strict liability’ statutes that, in defined circumstances, assist the plaintiff by shifting the burden of proof or persuasion onto others. However, that discussion may be for another day. In the typical negligence action, the plaintiff must prove that the defendant owed him/her, as a member of the consuming public, a duty of care with respect to the products put out to the public. Manufacturers or distributors of products that could cause an individual’s personal injury or property damage were reasonable care lacking in the products’ design, production or distribution, owe a duty of care to those individuals. Manufacturers and/or distributors may also have a duty to provide warnings, instructions and even training, if the product requires specific knowledge or understanding as to the proper use of the product. Persons using or installing products, of course, have a duty to follow the provided warnings, instructions, etc. A plaintiff must also demonstrate the defendant, having owed a duty of care, failed to discharge that duty by conforming to the established standard of care in the design, manufacture or distribution of the product. For example, employing substandard quality control practices that lead to product defects or inadequate warnings, may constitute a departure from the established standard of care expected of the manufacturer. Why Proving Negligence May Not Necessarily Be Enough Even if a defendant has been shown to have been negligent in designing or producing a defective product that caused harm, that defendant may not be found liable (or fully liable) for the damages that have resulted. For example, if a defendant can provide evidence that the product’s end user willfully or carelessly used the product improperly, failed to read or following instructions for use, failed to observe appropriate warnings, knew or ought to have known and accepted the risks involved in using the product, changed or modified the product in a reasonably unforeseeable way, or contractually waived his or her right to sue for damages, the defendant may claim that it is not liable at all, or that it only shares a portion of the liability. Manufacturers of highly technical products, such as medical devices, may resort to the “learned intermediary” defense in failure to warn cases. In these instances, the manufacturer might argue that it directed proper warnings and instructions to a professional, who in turn assumed responsibility for communicating that information in understandable language to the end-user when providing or dispensing the product. Investigations Are Worthwhile When people hear about these possible defences, they may be inclined to second-guess themselves and their ability to sue successfully for damages. They may query whether they exercised due caution while using a product, whether they paid attention to instructions and warnings, and whether their own possible misuse of the product contributed to their injury. While contributory negligence on the part of a plaintiff might offset some of the damages attributable to the defence, contributory negligence is not a complete defence. Moreover, other defences, such as liability waivers where users acknowledge the inherent risks of a product and relieve the manufacturer or distributor of liability, can be challenged by plaintiffs in the right circumstances. If you or a loved one has been seriously injured by a product that you believe to be defective, it is always in your interests to speak with a product liability lawyer about the circumstances of your particular case. A preliminary investigation, possibly at no cost to you, may help determine the range of options that you may have to seek justice, heal and find closure. IMPORTANT NOTE: This article is not intended as legal advice and must not be relied upon as such. Only a lawyer who is formally retained to evaluate and prosecute a personal injury claim on your behalf, can provide legal advice to you. Missed our Defective Product Versus Failure to Warn ? You can read it here: https://www.gluckstein.com/defective-product-versus-failure-warn/ To learn more about how helping you work through the steps to recovery after a personal injury is part of Gluckstein Lawyers’ commitment to full circle care, contact Jordan Assaraf. Jordan’s practice is devoted to all areas of Personal Injury litigation on behalf of plaintiffs, including product liability claims, class action and mass tort litigation, occupier’s liability claims, medical malpractice, motor vehicle accident claims and accident benefit claims. Sources: https://www.mondaq.com/canada/Consumer-Protection/824658/Product-Liability https://www.lexology.com/gtdt/tool/workareas/report/product-liability-2018-nav/chapter/canada https://www.torys.com/insights/publications/2019/04/product-liability-in-canada
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