Court:
Higher Regional Court of Saarbrücken, Judgment of 21 August 2014, 2 U 32/13, NJW 2014, 1600-1603 (Swimming Pool)
Topics:
Defective product
Warnings and instructions
Instruction defect
Failure to warn
Articles:
ss. 1, 3 Product Liability Act (Produkthaftungsgesetz - ProdHaftG)
Facts:
The defendant is the producer of a three-part swimming pool set which the plaintiff purchased via a distributor for self-assembly. The delivery was accompanied by as-sembly instructions which read inter alia:
"4. Assembly of circular basin. The assembly of the basin should be carried out by at least two persons. We recommend to wear gloves when erecting the steel wall. (...)5.3 Uncoiling the steel wall. Place the steel wall, together with your helpers, on strong planks in the middle of the circle of wall tracks. Uncoil the steel wall and set it into the wall tracks. (...)"
The plaintiff alleged that, during the assembly, the lower edge of the steel wall with a total weight of 40.8 kg slid over her foot and cut through the tendon of the tibialis an-terior muscle of her right instep. She argues, this happened due to a failure to warn on the part of the defendant, as in the assembly instructions there was no adequate warning of the hazardous features of the sharp edges of the steel wall and no advice to wear safety shoes during assembly. Therefore, the plaintiff sued for damages.
At first instance, the district court dismissed the plaintiff's claim. Her appeal was not successful.
Legal questions:
What are the conditions under which the producer of a swimming pool set, distributed for self-assembly, shall be liable for failures to warn relating to assembly?
Is the producer of a product under a duty to warn the user of the product of those dangers emanating from normal use or foreseeable misuse and not being part of the general risk knowledge of the relevant user group?
Do the assembly instructions for the assembly of a swimming pool require an explicit reference to the sharp edges of a thin steel wall and an advice to wear safety shoes?
Decision in a nutshell
The Higher Regional Court of Saarbrücken held that the producer of the swimming pool set was not strictly liable under s. 1 of the Product Liability Act.
Strict liability under the Product Liability Act
According to s. 1(1) of the Product Liability Act, if, as a result of a defect of a product, a human being is killed, is injured or affected in his health, or a thing is damaged, the producer is obliged to compensate the person who suffered the damage for the ensu-ing harm. A product is defective if, according to s. 3(1) of the Product Liability Act, it does not provide that degree of safety which can be legitimately expected, having regard to all the circumstances, in particular its presentation, its use which may be reasonably expected, the time when it was put into circulation.
Three types of defect
The Higher Regional Court, in accordance with common legal understanding, distin-guished three types of defect: design defect (Konstruktionsfehler), manufacturing de-fect (Fabrikationsfehler), instruction defect or failure to warn (Instruktionsfehler). A design defect exists if the product, due to a faulty conception or planning, is unsuita-ble for safe use. A manufacturing defect may occur during the manufacturing of the product and involves a deviation of the particular item from the general standard, which the manufacturer provided for the product series and upon which the safety expectations of the user are based. An instruction defect or failure to warn is a faulty instruction for use or an inadequate warning of hazardous features originating from the nature of the object which is, as such, free from defects. According to s. 1(4) of the Product Liability Act, the person who has suffered the harm has the burden of proving the defect and the link of causation with the harm.
Content and extent of instruction requirements
In accordance with settled supreme court case law, the Higher Regional Court stated that, in principle, it is the responsibility of the purchaser of a particular product to manage himself how to deal with it. The producer and his representatives only have to provide for the instruction of the purchaser, if and as far as they have to expect that, due to the features of the product and the assumed knowledge of the average users, certain specific dangers may arise. The producer, in order to ensure the required product safety, has to take (only) those measures that, according to the circumstances of the specific case, are necessary in order to avoid a danger and reasonable by objective standards, whereas the content and extent of instruction requirements in the specific case is determined essentially by the extent of danger and the endangered legally protected interest. If dangers associated with the use of a product cannot, according to the state of scientific and technical knowledge, be avoided by design measures or if design measures for risk avoidance are not reasonable to the producer and the product may, in spite of the hazards emanating from it, be put into circulation, the producer is, in principle, under a duty to warn the users of the product of those dangers emanating from normal use or foreseeable misuse and not being part of the general risk knowledge of the relevant user group. However, what is in the area of general empirical knowledge of the relevant group of purchasers does not need to be made part of an instruction for use.
No explicit reference to sharp edges of a thin steel wall and no advice to wear safety shoes required
The Higher Regional Court considered that the defendant fulfilled its instruction re-quirements, in particular by number 4 and number 5.3 (see above) of the assembly instructions, even though the steel wall had hazardous sharp edges. The court took the view that neither an explicit reference to that source of danger nor an advice to wear safety shoes was required. In the view of the court, it is in the area of the gen-eral empirical knowledge of the relevant group of purchasers that the lower edge of the relatively thin steel wall, given the apparently heavy weight of the steel wall, in-volves risks of injuries during assembly when it is placed on a foot, wearing only a light fabric shoe, and drawn over it. This also applies if, considering the typical group of purchasers of such a leisure product for self-assembly, one takes as the relevant point of reference the empirical knowledge of technically not experienced private cus-tomers and not that of technically qualified commercial staff for determining the safety level.
The court stated that, under the circumstances, it could have been expected from an average user, also without a corresponding hazard note, to handle the steel wall, whilst uncoiling it and setting it into the wall tracks, in a manner that it would not be moved in the area above the feet of the person carrying it, so that an injury of the alleged type would have been avoided easily. In this situation, the defendant was not obliged, based on the empirical knowledge and the capacity of risk control of an average consumer, to point out the need to wear adequate footwear or even safety footwear for assembly.
No link of causation
Beyond that, the court had doubts regarding the link of causation between the alleged defect (failure to warn) and the violation of the legally protected interest, which is only existent if proper conduct would have prevented the harm with certainty.
Later improvements irrelevant
According to s. 3(2) of the Product Liability Act, the court considered it irrelevant that the assembly instructions of the currently distributed product include additional safety instructions.
No other instruction defect
The court could not identify any other instruction defect or failure to warn, in particular not in terms of the defendant's instruction to place the steel wall on strong planks in the middle of the circle of wall tracks.
No design defect
In order to ensure the required product safety, the producer has to take those measures in the course of conception and planning of the product that are necessary in order to avoid a danger and reasonable by objective standards. In the present case, contrary to the plaintiff's argument, the Higher Regional Court considered that it was not necessary to secure the lower edge of the steel wall by attaching a protective strip. With regard to safety expectations of the relevant group of users, such safety measure was not found to be necessary as, given the apparently heavy weight, a risk of injury emanating from the lower edge of the relatively thin steel wall was obvious and a corresponding risk awareness, from an objective point of view, could be assumed within the relevant group of users. Also, the proposed measure was not deemed by the court to lead to a significant increase in safety. According to s. 3(2) of the Product Liability Act, it was irrelevant that the pool set is meanwhile dis-tributed in a modified version of the side wall (wave structure with folded edge).
Comments:
The plaintiff failed in two instances with her claim to recover damages (material and immaterial). In legal literature, the judgment of the Higher Regional Court of Saar-brücken was welcomed as an 'appropriate decision' which prevented 'American con-ditions'.
Decision based on case law of the Federal Court of Justice
The decision of the Higher Regional Court of Saarbrücken was issued in accordance with the relevant case law on warnings and instructions developed by the Federal Court of Justice. According to the Federal Court of Justice, the producer of a product is under a duty to warn the users of the product of those dangers emanating from normal use or foreseeable misuse and not being part of the general risk knowledge of the relevant user group. In contrast, what is in the area of general empirical knowledge of the relevant group of purchasers does not need to be made part of an instruction for use. Accordingly, there is no requirement to refer to all potential or generally expectable hazards emanating from the assembly of a product in the ac-companying assembly instructions. The Higher Regional Court of Saarbrücken did not advance or modify the principles on the content and extent of instruction require-ments as developed by the Federal Court Justice but applied them to the individual case. Thus, the crucial question was whether it was in the area of general empirical knowledge of an average do-it-yourself worker to consider the dangers emanating from the sharp edges of a thin and heavy steel wall and to wear appropriate footwear or even safety shoes.
General empirical knowledge of average do-it-yourself workers
The Higher Regional Court of Saarbrücken took the view that it could reasonably be expected from an average do-it-yourself worker to consider the dangers emanating from a thin and heavy steel wall when moving it within the area above the feet or placing it on a foot. Therefore, in the view of the court, it could have been expected from an average do-it-yourself worker not to wear light fabric shoes when performing the assembly of the swimming pool but to wear appropriate footwear or even safety shoes, what the court considered somehow obvious and self-evident.
The judges' position, however, may be also viewed critically. It may appear question-able whether an average do-it-yourself worker and his or her helpers, unlike profes-sional staff, are adequately aware of the hazards associated with the handling of a thin and heavy steel wall and the need to wear accurate footwear. And it may be very questionable whether the average private customer and his or her housemates usu-ally have adequate safety shoes at home. Besides that, it might be argued that the assembly instructions issued by the producer were somehow delusory with respect to safety precautions. The producer of the swimming pool set considered it necessary to give the advice to wear gloves when handling the steel wall but did not deem it nec-essary to give any advice regarding footwear. Thus, one might well wonder whether the advice to wear gloves had not created the impression that further safety measures would not be necessary.
Apart from that, the fact that there is an advice to wear safety shoes in the current version of the assembly instructions could not be taken into account in considering whether there was a failure to warn or not at the time the plaintiff purchased the pool set, according to the provision in s. 3(2) of the Product Liability Act.
Causation
In any event, the plaintiff's claim could not succeed because the plaintiff, who had the burden of proof pursuant to s. 1(4) of the Product Liability Act failed to establish a reliable description of the incident and a causal connection between the alleged fail-ure to warn and her injury suffered.
References
- Federal Court of Justice, judgment of 16 June 2009, VI ZR 107/08, NJW 2009, 2952.
- Federal Court of Justice, judgment of 17 March 2009, VI ZR 176/08, NJW 2009, 1669.
- Federal Court of Justice, judgment of 12 November 1991, VI ZR 7/91, BGHZ 116, 60 = NJW 1992, 560.
- Federal Court of Justice, judgment of 24 January 1989, VI ZR 112/88, BGHZ 106, 273 = NJW 1989, 1542.
- Federal Court of Justice, judgment of 25 October 1988, VI ZR 344/87, BGHZ 105, 346 = NJW 1989, 707.
- Federal Court of Justice, judgment of 4 February 1986, VI ZR 179/84, NJW 1986, 1863.
- Federal Court of Justice, judgment of 3 June 1975, VI ZR 192/73, NJW 1975, 1827.
- Illies, Welchen Detaillierungsgrad hat eine Montageanleitung aufzuweisen?, IBR 2013, 710.
- Radziwill, Gerichtsurteil: Heimwerker muss wissen, dass er Sicherheits-arbeitsschuhe tragen muss, http://www.rad¬ziwill.info/Gerichtsurteil-Heimwerker-muss-wissen-dass-er-Sicherheitsarbeitsschuhe-tra¬gen-muss (6 December 2014).
- Schator, Rechtsprechung: Warnpflichten in Montageanleitung, ProdR-Report 2014/3, p. 2, http://schator.de/wp-content/uploads/2014/07/ProdR-Report_3.pdf (6 December 2014).
