Recently, I was helping a client write a User’s Manual for a new product it is going to manufacture. I was writing warnings about injuries that could result from the misuse of the product. Later, as I was explaining to the client why I included some fairly obvious warnings, it struck me how ridiculous the law has become and how businesses are constantly under threat from frivolous lawsuits.
Mind you that this post is not about dangerous products or unsafe stores. Rather, this is about customers and clients blaming you and your business for obvious errors made by the client or things clearly beyond your control. Let me give you some examples to illustrate my point.
In products liability cases, manufacturers have to tell a consumer how to use and how NOT to use a product. Manufacturers must also warn consumers about the consequences of misusing a product. It is not enough to assume that a consumer will use a product for its obvious and intended purpose. Nor is it enough to assume, for example, that a consumer understands that lighting a charcoal grill in the living room might cause a house fire or dangerous fumes that might harm people’s lungs. You have to assume, as another example, that a consumer might try to scrap paint off an old house using a weed whacker. Sounds ridiculous, but that’s a fair view of how the law now works.
The law requires you to protect your business against the dumbest customers imaginable. Assume that your customers will make the silliest mistakes. Now guard against those risks. Unfortunately, that’s how you must now operate. You cannot assume that your customers are of average intelligence.
Please understand that there is a gap between what the law says and how it is actually applied. The law does not actually require you to protect yourself from injuries or losses sustained as a result of a customer’s unreasonable errors in judgment, but judges and juries apply the law that way. Bad facts, as we say, make bad law. Sure, you can appeal. But at what costs?
Most people have heard of the “reasonable man” or “reasonable person” standard. That remains the law. There is, however, the reality of what judges and juries do in actual cases.
The solution to these business risks is to prevent claims and lawsuits by assuming the worst. Create systems, policies and procedures that guard against claims by your dumbest customers and clients. Get insurance. Work with a good attorney, and take my warnings seriously. In short…
Hope for the Best, but Plan for the Worst.