THEIR VIEW: Issues of strict liability, comparative negligence present in hair fire case

By The West Virginia Record | Oct 18, 2013


A Charleston woman is suing Developus Inc. over a product that caused her hair to catch on fire after using a hair dryer.

Back in June 2012, Beatrice Baker purchased Splat Rebellious Colors Lightening Bleach, which was manufactured by Developus Inc. While Baker was applying the bleach to her hair, she used a hair dryer to help the process along. Baker's hair ended up catching on fire, causing - according to her complaint - burns to her head and scalp, as well as permanent hair loss.

Baker claims that she suffered these injuries as a result of an inadequate warning label on the Splat hair bleach. The warning label said nothing about whether the use of a hair dryer would be harmful while using the product.

Baker further claims that Developus Inc. acted negligent and reckless in manufacturing the product and is seeking compensatory damages due to medical expenses, personal injury, emotional distress, annoyance, and inconvenience.

When it comes to product liability, a manufacturer can be found liable even if it was never negligent when manufacturing the product. That is because the manufacturer can be found strictly liable.

Strict liability is found in cases where (1) the manufacturer had a duty to foreseeable customers and other users, (2) the manufacturer breached that duty, (3) the breach caused the injured party's injury, and (4) the injured party suffered damage.

However, the breach is not based on negligence, but on whether at least one of three factors was met.

First, was the product designed to be unreasonably dangerous? Second, if the product was not designed dangerous, did it come off of the assembly line dangerous due to a malfunction? Third, whether or not the product is unreasonably dangerous, does it have a warning label that adequately warns users of the potential dangers associated with using the product?

The warning label is not required to warn of any and all dangers, just the ones that are reasonably foreseeable. In this case, the injured party is arguing that using a hair dryer is one of the foreseeable activities that would take place while bleaching one's hair. If the product use is not one that is reasonably foreseeable, then the manufacturer is not liable.

Also, one factor in considering who is at fault in this situation is the injured party's own behavior. In West Virginia, there is a concept called "modified comparative negligence."

Comparative negligence, which is the law in several states, dictates that the injured party's award is reduced by the percentage that he or she was at fault for the accident.

In the case of this state's modified comparative fault, not only is the award reduced, but if the injured party is at least 50 percent at fault, he or she cannot collect an award at all. If you suffered an injury from using a product, contact a West Virginia product liability attorney and learn your options.

The Wolfe Law Firm is an Elkins personal injury firm founded by Dorwin Wolfe. This editorial appeared on the firm’s blog.

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