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It seems to me that no matter how thorough your warnings are, there will always be someone foolish enough to get themselves hurt in a way you couldn't have expected. Is there a line somewhere at which any injuries are the user's fault, not the company's even without an explicit warning?

Ryan_L
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4 Answers4

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There is no bright, highlighted line, but the test is generally what a reasonable person would do or expect. Not a total moron.

Let's take an example of using spray-on adhesive instead of hairspray. Would a reasonable person pour wood glue into their hair? Well, Hair gel is technically a very weak glue. But would you pour a glue that is (let'S take Gorilla Glue as a typical example) labeled as skin irritant, don't get in contact with eyes and skin onto your hair, or is it a misuse of a product the producer could not have expected?

2.1. Classification of the hazardous chemical Classification according to the model Work Health and Safety Regulations (WHS Regulations)

Flammable aerosols, Category 1 H222

Gases under pressure : Liquefied gas H280

Skin corrosion/irritation, Category 2 H315

Serious eye damage/eye irritation, Category 2A H319

Specific target organ toxicity — Single exposure, Category 3, Narcosis H336

And that is not even the crux: reading the chemical composition and MSDS, that stuff is laden with solvents while its glue-power is what one would expect from superglue. Is it foreseeable that a reasonable person puts superglue in their hair, in any shape or form? Is it even advertised as a possible hair-product?

No

While you can sue for anything in the US, being stupid and (in our example) dousing your hair in a product advertised as extra-strong spray-on superglue is far from what any reasonable person would do. And in this case, Devin J. Stone and Steve Lehto agree that there are no grounds to sue, product liability does generally not cover gluing your hair to your head.

Trish
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    I wonder, would'nt it be safer for the manufacturer to include how the product is supposed to be used, and ay that every use other than that is potentially hazardous ? – user3399 Feb 12 '21 at 14:07
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    @user3399 yes and no: if you cover only uses A B C and D, but E and F are branded as "banned" uses (even if they are use cases) together with G and H, then you lose markets E and F but might not gain protection from the "misuse" in G and H (unless you happen to be in Indiana, where you could technically put "this product is not to be used to glue anything together" on a glue bottle and claim product liability immunity...) – Trish Feb 12 '21 at 14:10
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Negligence

To win a negligence claim, the plaintiff needs to prove that the defendant:

  1. had a duty to the plaintiff,
  2. breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person),
  3. the plaintiff must have suffered actual harm,
  4. the negligent conduct was, in law, the cause of that harm, and
  5. that harm was foreseeable.

If they fail to prove any one of the limbs, the claim fails entirely.

No 1. is trivially proven - a manufacturer owes a duty of care to any potential user of their product. Similarly, nos 3 & 4 seem self-evident.

Foreseeablity

Should the manufacturer have foreseen the harm that was done?

Should it have occurred to the manufacturer that their glue sold in hardware stores or the hardware section of supermarkets would be used as hairspray?

If the answer is no, they are not liable. If the answer is yes, then we need to look at ...

Standard of Care

Determining the required standard of care is dependant on the circumstances of the particular case:

... it must be observed that in all cases the amount of care which a prudent man will take must vary infinitely according to circumstances. No prudent man in carrying a lighted candle through a powder magazine would fail to take more than if he was going through a damp cellar. The amount of care will be proportionate to the degree of risk run, and to the magnitude of the mischief that may be occasioned.

Mackintosh v Macintosh (1864) 2 Macph (Ct of Sess) 1357 at p 1362.

Or, if the judge were working today, he (because it was certainly a he in 1864) would say "its a risk management problem". That is, the care the defendant needs to take depends on the likelihood and the consequences of the bad outcome for the plaintiff when considered with foresight rather than hindsight.

Because this is a matter of fact and not law, the required standard of care is what the community (as represented by the jury/judge) at the time considers is appropriate.

If there are legal obligations and social norms then these can inform the standard but they are not definitive. So, if the glue manufacture did not comply with all the required or expected packaging and warnings, this can show that they failed to meet the standard. However, compliance with such obligations does not show that they necessarily met the standard - perhaps the obligations are now out of step with community expectations.

Glue is an inherently hazardous substance. However, goods and activities cannot be prohibited simply because of that because society needs to, for example, stick things together, in order to function.

Given that, the manufacture should consider the inherent properties of the product in use and misuse and mitigate the risks as far as reasonably possible.

Glue has to come out of the tube and be applied by people in order to function as glue so providing it in an unopenable container is not going to be possible (lest that seem unreasonable there are plenty of products which have either inaccessible or non-user accessible parts - it takes a lot of effort to touch the electrically live parts of a computer, for example). So the manufacture should consider things like child-proof caps, simple instructions for use (possibly in multiple languages), clear and unambiguous warnings (possibly using internationally recognised pictograms), PPE recommendations, and safety data sheets. These work in concert - its more reasonable to assume that someone old enough to get the childproof cap off is likely to be functionally literate.

So the jury/judge will look at what was done and ask: is this what a reasonable manufacturer should have done or is there something else the should have done but didn't?

Dale M
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    How is 4 evident? – Viktor Feb 12 '21 at 06:59
  • @Viktor it was proximate and directly related to the product – Dale M Feb 12 '21 at 07:34
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    I don't see how any of those are trivially proven. Surely a manufacturer of a heavy product, cement blocks for instance, doesn't have a responsibility to ensure that I don't drop one of their products on my foot. Or if I decide to use a razor to to scratch my back and scratch myself, that cannot be the fault of the razor's manufacturer. If you are using the product in a way that is completely outside its intended use, how can the manufacturer still have a responsibility towards you? – terdon Feb 12 '21 at 13:04
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    @Viktor I think 4 is partially dependent on 2 as to if there was any negligence. so if you're treating them as separate conditions to evaluate if 4 is true on it's own, you just assume that 2 is. – Rick Feb 12 '21 at 16:28
  • Under Greenman v. Yuba and its progeny, this may not be a "regular" negligence case, but a strict liability case. That makes the defendant's position more difficult than what you describe (because, if I understand it correctly, it eliminates requirement #5). But I think they would still win on #2 in this particular case. – Kevin Feb 12 '21 at 19:03
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    @Kevin in what way was the glue defective such that Greenman v Yuba is applicable. – Dale M Feb 12 '21 at 20:10
  • @terdon legal causation is related to proximity. If you negligently injure me such that I need an ambulance and that ambulance crashes doing further injury, you did not legally cause that further injury even though you did cause me to be in the ambulance – Dale M Feb 12 '21 at 20:12
  • @DaleM what I don't understand is why you say that a company would have any responsibility towards a plaintif who's using their product in a way it was never intended to be used. Putting glue in your hair seems akin to using a razor to scratch your back: if you cut yourself, that's on you for misusing the razor. 3 I'll grant you, but 4 I also don't see. how could the company be said to be negligent when the person used their product in a way it was never intended to be used? – terdon Feb 12 '21 at 20:21
  • @terdon where did I say the company was responsible? I set out what the plaintiff would need to prove to show they were. Cases are decided on evidence not press stories. – Dale M Feb 12 '21 at 20:22
  • @DaleM: The glue was a product introduced into the stream of commerce, so strict liability applies (in some jurisdictions). Whether it was "defective" is your #2. The plaintiff would allege (not very convincingly IMHO) that it had inadequate warnings and was therefore defectively marketed. – Kevin Feb 12 '21 at 20:40
  • @terdon Consider that it might not be obvious what a product does. The person in question apparently used a hairspray called "Got 2B Glued" which comes in a similar can. If both cans are sitting on a shelf, can someone who doesn't know about either brand tell what those products do? In this case (probably) yes, so the company (probably) isn't negligent...but if it hadn't been labeled correctly, then it would be different. – user3067860 Feb 12 '21 at 22:25
  • @terdon Item 4 in the answer simply says that the conduct of the maker alleged to be negligent must be a direct (proximate) cause of the injury for any suit to proceed. If pmne of the other requirements fails this one will not matter. – David Siegel Feb 12 '21 at 23:30
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    @terdon Intended use is not the sole issue. If a product is so designed, packaged, and marketed that some other use is likely (foreseeable) then it may need to be taken into account oven if not intended. Failure to prevent or warn against such unintended use may lead to liability. – David Siegel Feb 12 '21 at 23:34
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The "line" is a label. For this specific example, "Bonds: Wood, Stone, Metal, Ceramic, Foam, Glass and More. WARNING: Eye and Skin Irritant"

That's on the front of the bottle. On the folded label on the back of the bottle are more warnings about proper use and how to remove from skin should you get it on you.

If you've clearly stated the product's purpose, described potential harm that may be caused by using it properly and then stated other harm that could be caused by unauthorized uses, I think you've drawn a very clear line of how to use the product and any other uses and harms that result are the responsibility of the user.

CramerTV
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    Are you saying that any suit over use of a product not in accord with its label should be dismissed? If so i think the courts have not always agreed. Particularly when a use is neither approved nor specifically warned against. – David Siegel Feb 12 '21 at 23:15
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    you are free to put this stuff in your hair if you want it bonded, just don't get any on your scalp (because that's made of skin) – Jasen Feb 12 '21 at 23:24
  • @DavidSiegel, not all labels are sufficiently explicit. My point was that a label can protect the manufacturer of a product against misuse liability if worded properly. – CramerTV Feb 15 '21 at 17:07
  • @Jasen, I agree this particular label does not say to not use it in your hair - it does highlight a few of the potential surfaces for bonding but then includes the marketing pitch - "and more". That leaves this product potentially open to litigation. But my point wasn't if THIS label or THIS lawsuit had merit. The question asked where the line is, I said a label. And a properly worded label can indeed create a definitive line between appropriate and inappropriate use of a product for liability purposes. I mean, what else can a company do? – CramerTV Feb 15 '21 at 17:10
  • @CramerTV Yes a label can protect, or help protect, a manufacturer against some claims, particularly where the label explicitly advises that a specific use is unsafe. But where the use is a foreseeable one, the maker may still be liable, depending on the exact facts. – David Siegel Feb 15 '21 at 17:15
  • @DavidSiegel, To reiterate what I wrote to Jasen, if a label isn't sufficient, what else can a company do to protect itself from people misusing its products? – CramerTV Feb 15 '21 at 17:19
  • @CramerTV It can try to design the product so that even misuse is not likely to be harmful. It can try to design and market products so that misuse is not plausible, and thus not foreseeable. It can combine this with labels, And it can rely on the "reasonable person" concept, arguing that no reasonable user would misuse a product in a particular way. None of these are ironclad. – David Siegel Feb 15 '21 at 17:26
  • @DavidSiegel, That's definitely a good idea for some products but clearly not all. A label was the closest thing I could think of to a bright red line. A 'reasonable person' is a bit wishy washy to me since we all have different ideas of what reasonable is. – CramerTV Feb 15 '21 at 17:34
  • @CramerTV I think the legislative process usually views this as a "feature"...that is, in many cases laws explicitly require humans to make judgement calls, rather than applying the law as a computer program would. – user3067860 Feb 18 '21 at 16:25
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Jury emotion and the ambiguous principle of "equity" makes this question impossible to answer.

Trish and Dale both gave good answers, but in practice if you go looking for a line you won't find one.

Juries don't like to see sympathetic plaintiffs who have experienced significant costs. Given half a chance by a judge, they will want to take some action to mitigate those costs...and the action available to them is to transfer some or all of those costs to a party they see as better suited to bear them: a large company, or their insurer. And as soon as that happens, in any jurisdiction including those notoriously friendly to plaintiffs, you have an existing precedent that others can imitate.

tbrookside
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    I don't follow this: "sympathetic defendants who have experienced significant costs" Did you mean to say plaintiffs? –  Feb 12 '21 at 12:50
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    Cases with a total lack of things don't even get to the jury stage. They are dismissed well before for failing to state a claim as they fail test Dale enumerated: any one step (especially forseeability) results in failure to state a claim and dismissal.. – Trish Feb 12 '21 at 14:12
  • @forest - yes I do think one can empathize and put themselves in the shoes of someone who made a dumb mistake and is physically and publicly suffering for that mistake. – George White Feb 14 '21 at 01:42
  • If burglars who fall through the skylights on the rooves of the buildings they are robbing can be found by juries to be sympathetic, someday a plaintiff with industrial glue in their hair may show up who is sympathetic also. And that plaintiff only has to appear and prevail once, for entire business categories and industries to be decimated; to avoid that, the company as defendant has to prevail every time. – tbrookside Feb 14 '21 at 03:45