HARRY PHILO AND THE EVALUATION OF RISK
Harry Philo was a nationally known plaintiff’s lawyer and author of a number of legal publications including the Lawyers Desk Reference. He practiced in Michigan for many years and died this year. He wrote about hazards and the obligation to protect from injury.
His analysis included the concepts of risk which refers to the degree of exposure to a hazard. For example, the risk of one car a day crossing railroad tracks compared to 1000 cars a day. Hazard refers to the potential for harm. Spilled water on the floor isn’t the same hazard as an unmarked vial of deadly poison. Danger refers to the unreasonable combination of risk and hazard.
Harry wrote that any risk of serious injury or death is always unreasonable if there are reasonable methods to minimize or prevent it which were not taken.
So, what should bge done about such situations? The first step is to eliminate the risk. If that isn’t possible, minimize the risk, as for example a guard on machine. If that isn’t an option one must warn and instruct about the risk.
It’s a test of reasonableness. What is reasonable? Anything that is technically and economically available which would eliminate, minimize the risk or warn about it. In the case of the design of a product: “was it scientifically possible and economically feasible to design this product in a reasonably safe manner?”
What about warnings? Most warnings are only disclaimers to prevent liability and are in fact not warnings to prevent injury. They should be warnings to prevent injury. An inadequate warning might involve a situation where the manufacturer or person in control actuallyknew about the risk, but failed to warm about it in an adequate way.
A “caution” is a announcement that something can be safely done but only if it is done in a particular way guarding against injury. On the other hand, a “warning” would ad
To summarize, the basic principle Harry wrote was this:
“Any risk of injury or death is unreasonable or unacceptable if feasible and reasonable means existed that would have eliminated it and if not guarded against it or if not warned about the risk.”
If you think about it, these principles apply in almost every tort case, even malpractice.