Research Papers

Negligence Tort Research Paper

Product Subject to Recall
The Consumer Product Safety Commission (CPSC) safeguards consumers against the risk of harm, injury, or death posed by the goods they consume. In cases in which many claims arise as a result of product defectiveness, the manufacturers can recall the product to prevent damage and ensure consumer safety. Hayward Industries recalled its Pool Heater Vent Kits from the market on June 12, 2019 because they had been confirmed to contain carbon monoxide (US CPSC, 2019). The recalled products included the Hayward UHXNEGVT15001 Negative Pressure 6-inch Vent Kit used in pool heaters (US CPSC, 2019). The products’ size was inaccurate; hence, their likelihood of allowing carbon monoxide was high posing a significant threat to users (US CPSC, 2019). About 19-136 of the products were recalled from the market (US CPSC, 2019). By recalling the product, the company geared towards ensuring consumer safety.

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Liability for Negligence if the Company had Not Recalled the Product
Producers and manufacturers are often legally responsible for inaccurate or false representation of their products that harm or injures the products’ users under unintentional torts of negligence (Mayrsom, 2013). On whether the manufacturer should be responsible for the harm its product cause, the case of Bermond Fabric Manager’s Chair is a typical example of product recall. The firm is likely to be liable for unintentional tort of negligence under three situations, which include: the complainant has a reasonable course for the claim, the plaintiff suffered injury or damage from the use of the product, and the complainant followed the instructions strictly while using the product (Mayrsom, 2013). Thus, from the above case, the accuser has the right to seek legal redress for the damages suffered because of the use of the goods.

About the Product Recall
Duty of Care
Manufacturers, wholesalers, and retailers have a legal and moral obligation to adhere to the duty of care and are required to accept the standard of conduct established in law when transaction business (selling their products) with consumers. (Mayrsom, 2013). When the claimant can prove that the company violated its duty of care, the firm is legally accountable for the reparations under the jury of negligence (Mayrsom, 2013). Hayward Industries took the initiative to recall vent kits without proper sizes and advised customers to instantly turn-off the pool heater and contact the company for free replacement trough that they would mount a new vent kit (US CPSC, 2019). Such action was a rejoinder to the harsh liability tort; thus, revealing ethically responsible behavior.

Standard of Care
It refers to the reasonable level of care a manufacturer or retailer should provide to the consumer of its product bearing in mind potential threats. When the producer’s actions fail to meet the standard of care, they cease to fulfill the duty of care for its consumers as enshrined in the United States’ Constitution (Mayrsom, 2013). Manufacturers shall ensure that their products are free from defect or have limited minor defects, which may not pose a threat to the safety of the consumers. Moreover, the company shall acknowledge the existence of such defects. If the company’s product fails to meet the standard, the law obliges them to recall such product to prevent any harm its usage might cause.

Breach of the Duty of Care
The Consumer Protection Act requires corporations to observe the duty of care rules in their transaction process. In case of a violation of the duty of care that leads to the consumer’s incurring either physical or emotional injury, the manufacturer, wholesaler, and retailer are liable for negligence and are subject to the cause of law. However, the plaintiff must prove that the respondent owed them duty of care that the defendant neglected such duty by failing to follow standard care measures, and that the action that caused the damage was reasonable and led to both physical and emotional harm (Mayrsom, 2013). For instance, if Hayward Industries knew about the imminent dangers yet failed to recall its product leading to carbon II oxide poisoning, then they would have breached the duty of care clause.

Actual Causation
Actual cause in negligence states that “if it had not happened, the injury would not have happened either. But for that cause, the injury would not have occurred” (Enjuris, 2019). Actual causation connects the significant feature leading to the injury to emerge from the activities of the producers and manufacturer. Should Hayward Industries had failed to recall the product leading to poisoning of the pools which would later harm the users, it would have been an actual cause, because if they recall and offer an immediate remedy -which was the case-, the injury shall as a result not happen.

Proximate Causation
Proximate cause is a legal cause originating from the jury’s decision to consider whether it was foreseeable (Enjuris, 2019). In some of the court rulings, the offender may not be held liable even in circumstances where it is evident that their activities were the real cause of damage considering the risks that such actions were unanticipated (Enjuris, 2019). In the case of Hayward, the industry may fail to recall its product because of not seeing the imminent threat; as a result, causing injuries. In such a scenario, the court may uphold that the industries are not legally responsible for the damages.

Actual Injury
It denotes the real and definite preconception associated with anticipated or existing litigation, such as the incapacity to meet a filing deadline or to register a claim. Often, the law make it difficult for people to file a case in court for the damages and harm that the product causes; as a result, incurring the entire loss without any compensation. For example, if Hayward did not recall its vent kits and such failure lead to carbon poisoning, they could shelve on the fact that the injury of their actions was unforeseeable, hence forcing the plaintiff to bear all the losses.

Defenses to Negligence
The respondent can cling to contributory, comparative, and risk assumptions as some of their defense basis for negligence (Mayrsom, 2013). Firstly, contributory negligence emerges from the failure of the complainant to take cautionary and preventive measures causing an act of negligence, which in turn, leads to harms, damages, or injuries. Secondly, comparative negligence doctrine involves the court using the petitioner’s negligence to decrease the compensation (Mayrsom, 2013). Lastly, the accuser may take advantage of the risk supposition by attesting that they informed the complainant about the danger or harm that the product posed yet, he or she proceeded to use it notwithstanding (Mayrsom, 2013). Therefore, there are various defenses to negligence.

Analysis and Application of Relevant Consumer Protection Statute in Conjunction with the Product Recall
One of the sections of the Consumer Protection Act is the statutory Duty of Care Act, which compels producers and manufacturers to follow strictly the consumer safety regulation (Carpenter, 2018). The Hayward Industries case serves as an example in which the company took immediate action to issue a recall of its product and advise its customers to immediately turn off the pool heater and contact the company for a free replacement and installation (US CPSC, 2019). These actions emulated the strict liability tort case, thereby making them not liable for any damage. By doing so, the company was acting in line with the Duty of Care Act to prevent its customers from using the defective product.

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Carpenter, D., (2018). The Consumer Product Safety Act: A legal analysis. Congressional Research Service. Retrieved from
Enjuris. (2019). Causation in negligence cases. Retrieved from
Mayrsom. (2013, August 23). Negligent tort. Retrieved from
US CPSC. (2019, June 13). Hayward Industries recalls pool heater vent kits due to carbon monoxide poisoning hazard. Retrieved from