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Blinded by the light

If you suffered the misfortune of eye injury after viewing the recent solar eclipse through a pair of unsafe solar eclipse glasses, you may be wondering what recourse you have against those who sold and/or produced the unsafe glasses.

Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public may be held responsible for the injuries those products cause.

Generally, Canadian law requires products to meet the ordinary expectations of the buyer.

A product is considered defective when there are flaws in its design or manufacturing, or when the customer is given insufficient warning regarding potential dangers involved in the expected use of the product.

Evidence demonstrating design flaws, manufacturing defects, and/or marketing defects play a crucial role in proving negligence in a product liability case.

Key evidence that will be necessary with respect to a product liability claim arising out of the use of unsafe solar glasses would include, but not be limited to, retention of the unsafe glasses which were purchased and used to watch the eclipse, the receipt for the purchase of the unsafe glasses and any marketing material viewed prior to purchasing the unsafe glasses.

Seeking compensation for injury resulting from the use of unsafe solar glasses requires the person who was injured to establish:

  • The defendant owed a duty of care to the plaintiff with respect to the product;
  • The product was defective or unreasonably dangerous;
  • The defect caused or contributed to the plaintiff’s damages; and
  • The plaintiff’s damages were reasonably foreseeable.

Significantly, the injured party must also demonstrate that the product defect, rather than user error, caused the injured party’s injuries.

What if you purchased your solar glasses at a brick-and-mortar store?

If you purchased your glasses in person at a physical store, the store where you purchased the glasses would be the seller/retailer and the company who made the glasses would be the manufacturer.

Determining whether there are suppliers and distributors would require further investigation which could be greatly supported with professional assistance.

What if you purchased your solar glasses through an online retailer?

If you purchased the solar glasses from a third-party seller by way of an online retailer, such as Amazon, it may be difficult to determine who is potentially liable for the injuries which you suffered.

In this type of situation, third-party sellers using an e-commerce service provider such as Amazon are often difficult, if not impossible to locate and quite frequently cease to exist after the specific event their product was created for passes.

In this instance, once the solar eclipse has taken place, companies which were created for the single purpose of selling products related to the eclipse are often dissolved.

The question then becomes, is the e-commerce service liable for the injuries caused by the defective solar glasses?

To answer this question, the Court must decide whether the e-commerce service provider (Amazon, for instance) is liable for the defective product (the unsafe solar glasses).

In American Courts, Amazon LLC has argued that it should not be held liable for injuries sustained by those who purchase products from their e-commerce site because it is not a manufacturer, seller, or supplier, but merely a service provider.

On several occasions, American Courts have disagreed with Amazon’s liability arguments.

In Loomis v. LLC, the Court held that Amazon was “pivotal” in bringing a product to the consumer, and as such it could be held liable for the defective product. Similarly, in Bolger v., the Court held that Amazon “is an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.”

Canadian Courts have not yet weighed in on whether e-commerce sites such as Amazon are, or can be, liable for injuries incurred as a result of defective products sold on their platforms.

Looking to how this issue has been decided in the United States, it is likely that a Canadian Court would view am e-commerce site’s involvement in the sales process similarly to its American counterpart.

How to move forward with a claim?

If you are considering moving forward with a product liability claim, it is essential that you keep the defective product and any receipts associated with the purchase of that product. Your next step should be to retain a legal professional.

Legal professionals are essential in product liability claims, advising on claim strength, gathering evidence, and representing plaintiffs in negotiations and throughout the court process.

If you are considering pursuing a product liability claim, please do not hesitate to contact Soloway Wright LLP for assistance.

About the author: Michael practices general litigation, including, Personal Injury, Medical Malpractice, Construction Law and Commercial Litigation. Michael has appeared before the Superior Court of Justice, the Ontario Court of Justice, Divisional Court of Ontario, the Federal Court, and various administrative tribunals.

Soloway Wright LLP is a community-based law firm with offices in Ottawa and Kingston. With over 75 years of experience, our team of over 35 specialty lawyers in Ottawa and Kingston offer a dynamic blend of knowledge and experience to clients requiring assistance with Business Law, Commercial Leasing, Commercial Litigation, Condominium Law, Construction Law, Corporate Finance & Securities, Employment, Labour & Public Law, Workplace Investigations, Environmental Law, Estate Planning & Administration, Insurance Law, Medical Malpractice, Personal Injury, Municipal, Land Development & Expropriation, Real Estate & Development, and Tax Law matters. Our goal is to bring your legal issue to an effective, affordable, and successful conclusion.

DISCLAIMER: This article is for general information purposes only and is not (and should not be construed as) legal advice. The information contained herein summarizes only certain aspects of the subject matter and is not a comprehensive review of applicable law. All of the foregoing is subject to legal and accounting advice based on the particular circumstances of each potential client.