Term Paper on "Assumption of Risk"

Term Paper 6 pages (1880 words) Sources: 5 Style: APA

[EXCERPT] . . . .

Business

Product Liability and Assumption of Risk

Product liability and assumption of risk are important concepts in business law. In most cases, when a company manufactures or sells a product, it is assumed that the product is free from any special risks or dangers for the purchaser. As well, if a company provides a service, it is generally taken for granted that use of the service by customers will not result in any undue injury to the user of that service. However, there exist cases wherein the use of a product or service may entail certain risk of injury that is considered automatically to be the responsibility of the user of that product or service. These would include inherently, or potentially, dangerous or injurious goods or services which, even if used in the manner prescribed - could result in harm to the user. An example of a product that could cause or contribute to injury during the course of normal usage would be an automobile. Though there be nothing wrong with a vehicle as manufactured and sold, the operator of that vehicle might still be subjected to situations in which operation of that "perfectly" manufactured vehicle could result in injury, or even death. Further, a service, such as that provided by a bungee jumping company, could also result in the severe injury or death of the purchaser of the service, despite there being no defects in the equipment used, or in the conduct of the bungee jumping operation. An understanding of the doctrines of product liability and assumption of liability are essential for any businesses manufacturing such goods, or offering such services, as might come under these provisions. Failure to comply with product liability and assumption of risk laws can result in significant financial obligations on the part of the manufacturer or service provider.

In the broadest sense, the legal doctrines of assumption of risk and product liability are based on the idea of choice. (Taslitz, 2002) An individual chooses whether to avail himself or herself of a specified service, or to make use of a particular product. The choice to use a service or product relates in many ways to basic notions of privacy. Human beings have a right to think for themselves, and to make their own decisions:

Different aspects of our character or personality -- our propensities to think and act in certain ways -- are called forth by different situations. We may be tardy when attending parties but punctual when attending church. We may be rude under time pressure, but otherwise civil and kind. We wear one mask at a ball game, and another at work. (Taslitz, 2002)

Such a service as bungee jumping exists because there are individuals who enjoy "living on the edge," who gain a certain thrill from participating in activities that could result in injury or death. On most occasions, no adverse condition results from performing these sorts of activities - neither the performer of these actions, nor any other person, not involved, is in any way harmed. Nevertheless, the risk exists. Should injury or worse result, it is assumed that the victim, either directly, or implicitly, gave prior consent to use the product or service in such a manner. Much of the concept of assumption of risk had its origin in cases concerning workplace accidents where, the idea was,

Summed up in the maxim volenti non-fit injuria -- roughly translatable as "there is no legal injury to one who consents" -- the doctrine held that "[n]o action can be maintained for damages resulting from conduct suffered by consent" of the victim. (Witt, 2001, p. 744)

The doctrine was used to absolve employers of risk on the grounds that their employees had voluntarily undertaken such work and, as they had given their consent, this consent implied a recognition of the potential hazards.

Workplace accidents can often be attributed to processes used in manufacturing, or to chemicals and other agents employed in factories or other workplaces. In this case, chemicals and machinery would be considered products that are knowingly, and with consent, used by the employees. Again, the first assumption would be that such employees give their consent to use these items. However, it is possible to conceive of a situation in which employees, though consenting to work at a particular job and under certain conditions, are unaware of the real dangers of the equipment or chemicals used in connection with their work:

hazard may be "obvious," but the likelihood of its causing a specific kind of accident, as well as the costs that accident would impose on the plaintiff, may be less obvious. By contrast, a worker might be well aware of hazards that were not obvious, in which case a voluntary assumption of risk doctrine that focuses on the "obviousness" of the risk. (Dewees, Duff & Trebilcock, 1996, p. 350)

An individual making use of a product or service that he or she knows to be dangerous can also exacerbate the risks involved in the use of that product or service. For example, an employee that fails to wear a mask while working around equipment that produces tiny particles would be unduly exposing himself or herself to the risk of inhaling those particles. Inhalation of those particles e.g. fibers in a textile mill or coal dust in a coal mine, could be injurious to health. The failure on the part of the employee to take the necessary protective measures would constitute contributory negligence.

The issue of contributory negligence can be particularly relevant in cases of assumption of risk and product liability, as it frequently produces circumstances to the detriment of the tortfeasant. It is one thing for a manufacturer or service provider to claim that the user of its product or service misused the product or service, thus contributing to any injury, but another to claim that the risks were well-known and to take no responsibility whatsoever for any possible misuse of the said product or service. One might consider the example of an auto manufacturer that advertises a new car on television. The car is shown traveling at dangerously high rates of speed along winding mountain roads. A tiny disclaimer at the bottom of the screen advises viewers - and potential buyers - that the driver is a professional driver driving on a closed course. While one could argue that a conscientious consumer i.e. A good driver, would not undertake the unnecessary risk of speeding around hairpin turns, it could also be argued that other potential consumers might see the commercial as an advertisement regarding how the product should be used. In addition, it might be claimed that most viewers of the commercial either do not notice, or do not bother to read, the tiny disclaimer. A consumer could purchase the vehicle, speed down a dangerous road, get into an accident, and sue the auto manufacturer on the grounds that he was injured while using the product just as it was intended to be used. In fact, when cosmetic changes to the appearance of new car models failed to boost sales, auto manufacturers actually resorted to an advertising campaign that emphasized the speed and power of their vehicles. (Clinard, 1990, p. 28)

For the first time, ordinary automobiles could easily travel at speeds well in excess of statutorily established limits. Injuries and deaths resulted, which, naturally, manufacturers blamed on consumers' assumption of risk. The big Detroit auto manufacturers assumed no product liability in these cases based on the idea that they were not compelling anyone to use their products in an unsafe manner. The fact that their products could be used in an unsafe matter was simply an issue of consumer choice.

Nonetheless, the assumption of liability by automobile manufacturers highlights the predicament of contemporary corporations. A product or service may be intended for a specific use, but it may also be specifically misused without that misuse requiring any material change in the product or service itself. Not only have car manufacturers been sued, but also firearms manufacturers, retailers and manufacturers of playground equipment, swimming pools, bicycles, and so forth. In recent years, gun manufacturers have frequently been the victims of lawsuits in cases where individuals have died as a result of a gun violence. The manufacturer did not sell the gun with the intention of it being used in the commission of crime. However, the gun itself was used according to directions - in other words, it fired as it was supposed to fire, and bullets can and do kill. To sue providers of products or services for the use of those products and services in ways that are possible, but not ideal, opens up a vast array of industries to potentially catastrophic litigation. If gunmakers are forced to assume liability in every case of wrongful death involving a firearm, then what about a recreational item such as a swimming pool, or bicycle? "More kids under 15 are killed by bikes, swimming pools, and cigarette lighters than by gun… READ MORE

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