Donell Coleman worked at The Quarry at Lincoln Heights Golf Club as a groundskeeper. He basically raked sand traps, removed weeds, and operated lawn mowers, helping to make the golf course beautiful in the eyes of its beholders. His uniform was supplied by Cintas Sales Corporation. It was made of a standard, 65% polyester, 35% cotton, non-flame retardant material.
During one workday, the grounds crew was cooking up a barbequed-steak lunch. Coleman got out the grill, loaded it up with charcoal, soaked the charcoal with lighter fluid, and lit the briquets, all without incident. He slapped two steaks on the grill, and turned around to reach for the third. It was about this time that a gust of wind carried the flames from the grill to his shirt, catching it on fire. Coleman stopped, dropped and rolled, but the fire was stubborn. His supervisor extinguished the fire in about a minute by smothering it with other uniforms. Coleman’s injuries resulted in $300,000 of medical expenses and lost wages.
Coleman sued Cintas, claiming that the uniform wasn’t marketed properly, that Cintas had a duty to warn him that the uniform would catch fire if placed next to a flame. Cintas replied “hogwash; everybody knows material burns, so we had no duty to warn you of this particular danger.” And hence the battle was joined in court.
Here’s the beginning point for disclaimers: manufacturers and suppliers have a duty to inform users about hazards associated with the use of their products. If the user needs certain information to safely use the product, or to have an accurate expectation of the services being provided, then the manufacturer or supplier must give that information to the consumers/users.
Cintas’ defense is known as the “common knowledge defense.” There is no duty to warn of dangers that are of common knowledge to the consuming public. This is not an easy burden to carry, though. Cintas had to show that there was a general societal understanding of the risks inherent in a specific product or class of products. A matter of common knowledge is information known by the public generally based on indisputable facts. The more disputable a fact is, the less likely it is “common knowledge.”
Cintas basically said “it is common knowledge that clothes will catch fire when exposed to an open flame. Therefore, there is no duty to warn users of this fact/danger.” Coleman replied “that may be true as far as it goes, but my real gripe is that you should have told me about the speed and manner in which the uniform would burn, and the difficulty of extinguishing the fire once ignited. THAT was not common knowledge.”
A divided Court sided with Cintas, holding that mass marketed, synthetic clothes may not be totally understood by the average consumer, but concluding that everybody knows non-flame retardant clothing will burn once exposed to an open flame, “especially flame arising from a charcoal and lighter fluid-filled barbeque pit.”
Another defense to situations like this is the so-called “learned intermediary” defense, also known as the “sophisticated user defense.” A manufacturer or supplier may meet its duty to warn, in certain situations, by relying on an intermediary to communicate a warning to the ultimate user of a product. The issue in this defense is whether the original manufacturer has a reasonable assurance that its warning will reach those endangered by the use of its product. This is a very risky defense to rely on in planning disclaimers and such, because when the warning to the intermediary is inadequate or misleading, the manufacturer remains liable for injuries sustained by the ultimate user.
Does your product include enough information to warn users about any hidden danger? Think of every possible (reasonable) way a user would use the product. Are any of those dangerous? If so, warn the users not to use it in that way.
Does your service contract advise the client what to do with your services, or what the limits of your services are? When a client hires you, what could their (reasonable) expectations be? In that realm of possibilities, add information to focus them on the kernel of your reality, eliminating the rest.
Form contracts, disclaimers and such are some of the most boring, yet most valuable, asset protecting and important documents you use in your business. Have them reviewed by counsel regularly, and keep them up to date. If you print your contracts in bulk, get your lawyer to review them in time to make changes for the next print order.
In 2002, the Porsche commercial’s disclaimer “don’t do this” was probably more for its humorous effect, than for any legitimate purpose, drawing attention to the fact that people would do crazy things just to get a look at you in your new Cayenne. It’s OK to make yourself the center of ridiculous attention in your sales and marketing efforts. But before you do, protect yourself and your business with its contracts and disclaimers, so you can afford to keep your Cayenne. Or your truck. Or your horse.
Coleman, et al., v. Cintas Sales Corporation, Case No. 04-02-00116-CV, San Antonio Court of Appeals, December 18, 2002.