Legal Blog
Dangerous Products and the Duty of a Merchant
Friday, January 04, 2008
The case of Walford v. Jacuzzi Canada Ltd., 2007 ONCA 729 is an interesting Ontario Court of Appeal case that sends a very strong message.
Summary:
Parents buy a pool slide from a store. They ask the store owner if it's safe in a four foot pool. Merchant assures her it's ok and does not tell Mother that four feet is minimal requirements. Doesn't tell mother that potential for catastrophic injuries.
The daughter who was 15 years old went down the slide knees first, hit her chin on the bottom of the pool and broke her neck - becoming a quadriplegic. Her mother had warned her to go down feet first only. Trial judge found merchant not liable and girl 100% contributory negligent.
C.A. overturned decision and found:
The duty to warn of potentially dangerous products applies only to dangers that are not obvious.
However, where the nature and extent of the danger of using a product is not obvious and a consumer seeks reassurance from a merchant concerning the safety or propriety of a product, the answer must not be misleading.
Although the TRIAL judge was satisfied that the respondent met the standard of care when its employees told Mrs. Walford, in response to her questions, that it was "okay" or "no problem" to install a 10-foot long slide with a 4-foot-deep aboveground pool the Court of Appeal did not agree.
The respondent held itself out as having expertise regarding pools and pool accessories. Mrs. Walford trusted the respondent.
Applying the correct standard of care, the respondent, Pioneer Pools, was negligent and breached its duty by failing to warn Mrs. Walford when she sought advice from its employees of the hidden danger of catastrophic injury from erecting a slide on a 4-foot-deep aboveground pool.
Although Mrs. Walford gave her children many instructions and rules about using the pool, including to only slide down "on their bums" or "feet first", she did not tell them why that was important or the extent of the danger if they were to deviate from that position. Mrs. Walford did not tell them because she had not been warned herself and was consequently unaware of the nature or degree of risk she had created by installing a slide on her shallow pool. Nor could Correena have reasonably known that her behaviour was as reckless as it turned out to be, as she was accustomed to using slides installed on deeper pools that did not require her to slide down feet first to ensure safety.
Daughter was 20% contributory negligence. Damages were $5 Million dollars