Fact Pattern

Your business manufactures and sells construction machinery and tools. One of your best-known products is a large table saw (a circular saw that cuts various materials and is operated by individuals engaged in the construction industry). Recently, government regulations have changed, requiring manufacturers to ensure that any product that incorporates a saw manufactured after the date of this change must incorporate a plastic guard attached to the saw, which protects individuals from accidentally injuring themselves while operating the tool. Unfortunately, your table saw cannot accommodate a plastic guard and requires re-design. You begin to manufacture a newer model of table saw with the appropriate guard. You have a large amount of table saws of the previous design that are still for sale. The government regulation does not require you to stop selling the older model of saw if it has already been manufactured. Many manufacturers begin to place warning stickers on older model saws, which provide that they do not include a plastic guard and that these saws are more dangerous to use compared to newer models, but this warning label is not required under the government regulation. You decide to do the same when selling the older model of your table saw to retailers and resellers.

A large construction business approaches you to purchase a large amount of table saws directly from your business for use in their operations. You offer to sell them the older model of table saw or the newer model of table saw and tell them that the older model is less expensive, but does not have a safety guard, and the newer model is more expensive, but does have a safety guard. As they are cost conscious and prefer to purchase these items at a lower price, they decide to purchase the older model instead of the newer model. They purchase a large number of the older model table saws without plastic guards. Because these are sold directly to an end-user, your employee responsible for placing the warning labels on the older table saws forgets to attach the warning labels to the table saws sold by your business to the construction company.

A year later, the construction company informs you that they have had several new employees injure themselves using the table saws purchased from your company, because they are not used to working with table saws that do not have plastic guards attached to them. You learn from a friend who has worked at the construction company in the past that they hire many unskilled workers and rarely provide any training or orientation before these persons begin working.

1. Describe the potential tort you may be accused of regarding the sale of the table saws to the construction company and the injuries of their employees.
2. Describe the general and specific elements of the identified tort you may be accused of, and that the construction business would need to establish to be successful in this tort claim. Provide your reasoning for each element by referring to the above facts.
3. What would the potential defences be if the construction company sued your business for this tort? Briefly state the defences and the essence of your counter argument as it relates to the facts provided in the scenario.
4. What are the potential courses of action you could take to mitigate the risks associated with the above facts (both past and present/ future)?