Canadian Underwriter

Ontario Court of Appeal clarifies a retail store employee’s “standard of care” in product liability case

November 30, 2007   by

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If a danger related to the use of a product is not obvious, and a consumer seeks reassurance from a merchant concerning the safety of the product, the answer must not be misleading, the Ontario Court of Appeal has found in a recent product liability case.

In Walford v. Jacuzzi Canada Ltd., MarionWalfordwanted to install a slide to her family’s above-ground, four-foot-deep pool. She believed she could because the cover of her pool’s manual showed an illustration of a child using a slide installed at the end of the pool.

She purchased a 10-foot slide she had seen in an ad placed by Kevin Boyle after calling the pool store, Pioneer Pools, where she had been a customer at for two years. Both Pioneer Pools and Acorn Pools told her they did not see a problem with what she proposed to do.

The City of Hamilton told her on two separate occasions that they did not regulate slides and that there was no city regulation prohibiting the use of a water slide with a four-foot pool.

She took the slide to her Pioneer Pools store, where the manager inspected the slide and again told her there would be no problem in using the slide with her four-foot deep pool. Walford purchased mountings from the store and went to another Pioneer Pools location to purchase tubing. Again, she described the slide and her pool, and she was told again it would be okay. The store provided her with sketch showing her how the mountings were to be installed.

She installed the slide and the next day her daughter, Correena, and neighbour went swimming and used the slide. Correena went down the slide seated first, but then went down crouched on her knees. She entered the water head-first, hit her chin on the bottom of the pool and was rendered a quadriplegic.

Walford sued Pioneer Pools, Kevin and William Boyle (who had sold her the slide), Esther Williams Pools of Canada Inc (the manufacturer of the Walford’s pool) and Jacuzzi Canada Ltd. (the manufacturer of the slide).

The trial judge found no liability on the part of the defendants. The trial judge observed that Walford’s relationship with the Pioneer Pools store, her reliance on the employees and her trust in the personnel to give her expert advice gave rise to an apparent duty of care to warn Walford about her proposal to modify the slide. However, the judge found the store’s employees were not negligent because they only supplied the missing parts and were not motivated to mislead Walford in order to make a sale.

But according to Ontario Court of Appeal Justice Kathryn Feldman, just because they did not intend to mislead with the intention of making a sale, the employees were nevertheless “obliged to tell Mrs. Walford that although a slide could be used with a four-foot pool, this was the minimum permissible depth for sliders above 13 years of age — and that if sliders did not go down feet first, they risked catastrophic injury….”

Had it not been for the failure of the employees to respond to Mrs. Walford’s inquiries by warning her of the risks of installing the pool slide on her four-foot pool, Feldman wrote, Walford would not have erected the slide and Correena would never have been injured going down it.” •

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