Manufacturer Not Liable for Fire Resulting from Misuse of Product

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Mr. Justice Gordon Sedgwick handed down an interesting decision last week in a products liability case.

In Tudor Inn Reception Hall (1992) Ltd. v. Merzat Industries Ltd., a fire occurred at an Ottawa banquet hall in 1999. The owner had suspected that there was a skunk under the men’s washroom of the building. He used a rodent exterminator called “The Great Destroyer”, manufactured by the defendant, to try to get rid of the skunk.

“The Great Destroyer” was a cartridge designed to exterminate rodents by the emission of a gas which was released after a fuse had been lit.

In this case, the cartridge was lowered into the area beneath the floor of the men’s washroom by means of a clothes hanger. It evidently smouldered and eventually set fire to the buidling, destroying it.

“The Great Destroyer” came with instructions and warnings. One of these was that it was to be used “only inside of burrows, never inside of buildings”. There was also a warning that, “once ignited by the fuse, the cartridge will burn vigorously until completely spent and is capable of causing severe burns to exposed skin and clothes and of igniting dry grass, leaves and other combustible materials.”

The defendants called no evidence, but Justice Sedgwick ruled in their favour, dismissing the action. He was satisfied as to the adequacy of the warnings of the risk of fire. He also concluded that the fire had resulted from the plaintiffs’ misuse of the product, by lowering it into a cavity beneath the floor, near the combustible wooden sub-floor.

Finally, His Honour also noted that the law does not require that a manufacturer of a product warn of obvious hazards associated with its use. He felt that this principle was equally applicable to a situation where the damage results from a misuse of the product. He explained his reasoning in the following passage.

Quite apart from the issue of the adequacy of the words of warning, the law of tort will not impose a duty to warn of a danger which is so obvious and apparent that anyone would be aware of it.  Deshane et al v. Deere Co. (1993) 15 O.R. (3d) 225, 241 (Ont. C.A.).  Galligan, J.A, speaking for a majority of the Ontario Court of Appeal relied on a brief passage from the judgment of Seaton, J.A., in the British Columbia Court of Appeal in Schulz v. Leeside Developments Ltd. (1978) 6 C.C.L.T. 248, 90 D.L.R. (3d) 98 (B.C.C.A.),

The specific limitation that in my view is applicable here is set out most clearly in Prosser’s Law of Torts, 4th ed. at 649:

Obvious Dangers

One limitation commonly placed upon the duty to warn, or for that matter the seller’s entire liability, is that he is not liable for dangers that are know to the user, or are obvious to him, or are so commonly known that it can reasonably be assumed that the user will be familiar with them.  Thus there is certainly no usual duty to warn the purchaser that knife or an axe will cut, a match will take fire, dynamite will explode, or a hammer may mash a finger.

These words apply with equal force where the specific danger, in this case, the risk of fire arises from modified use of a product by a user in a manner contrary to explicit warnings which the user chooses to ignore.

It is an interesting question, whether a particular danger can be so obvious as to make a warning unnecessary, yet at the same time, be an unforeseeable use of the product for a purpose other than that for which it was intended.

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