Posted by Brent on May 17, 2008, 11:50 am, in reply to "Legal advice, Brent?"
35.10.247.154
Ok, well, a couple of things. First, I'm not yet a lawyer; I don't have a license, I haven't passed a bar exam, etc. Second, tort law is not my strongest area. That being said, I can help a little.
Sometimes even though a package or contract or other printed document to which you owe some obligation to read and abide by says something, that doesn't necessarily mean it's enforceable. A good example is one where an insurance company might have some very one-sided clauses in their insurance plans, and the purchaser of coverage doesn't really have any power to negotiate the terms. That is, they sign/pay and get insurance or they don't get anything. In that case, the court might make a point to look at the lack of equal bargaining power in the insurance contract and find that the nasty clauses can't be enforced. In your case, however, I think that "use as directed" might be enough. Although it's a cheap "out" for the manufacturer, I assume they provide directions for the product's use. Moreover, many jurisdictions (and if you give me a little time I can find out about Missouri specifically) consider what is called "contributory negligence" as a mitigating factor in liability. In some jurisdictions, it is a complete bar. It used to be the case in Michigan that, say, if you were 1% of the cause of an accident and someone else was 99%, you couldn't sue at all for damages (contributory negligence was a bar). Now, in most places, your damages will be reduced by the amount of your negligence. I hate to be so frank, but I think that your putting the stuff in your ears against the advice of the packaging might cause you to bear a lot of culpability, and as a result your potential damages would be reduced by the proportion of your contribution to the whole mess.
That's not to say you shouldn't call a lawyer. It shouldn't cost anything to ask them about it, and they will be able to tell you pretty quickly whether they think you're onto something or not. You'll get differing opinions from different attorneys, but they will be able to take into account not only your circumstances, but the costs you would incur in pursuing your case.
So I suppose in sum, I'd say that if you really want to pursue it, call around to some attorneys and see what they think. My guess, though, is that you're probably not going to have much of a case (because of the possibility of contributory negligence, the cost of litigation versus the medical bills, and the time it would take to build a case).
*On a side note, you might find out about workers's compensation. You mentioned that you woke a fieldmate - were you on some sort of an expedition related to your job? If so, and you were injured in the course of your employment, your employer may have to cover your medical bills. The courts are a lot less strict about this kind of stuff - there have been cases where employees play pranks like talking a coworker into drinking at work (expressly against company policy), and putting paint stripper or some harsh chemical in the flask. Even doubling "horseplay" (ha! an understatement!) up with breaking rules at work, the guy drinking the burn-your-throat-out-gunk got paid for his medical bills and lost wages while he recovered. If you were camping out while performing some task at the direction of your boss, you might get some help here. If this was the case, my advice is not to say anything about a lawsuit or whatever, but go to your boss and fill out an incident report or the equivalent as soon as possible. Once you do that, inform him or her that you had to go to the hospital. See what they say - they might even talk to you about covering the costs.
Email me if you want to talk further. Anyway, good luck.
Cheers!
P.S. - I found a picture of us from prom a few weeks ago, me hugging your arm and you in a duct-tape tuxedo. I also found a shot of me wearing the Pegaturkey shirt. As soon as I can scan them, I'll get them posted here.
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