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Quarterly Newsletter
Product Liability
The Duty to Warn: The Law in a Nutshell
by Philip J. Callan, Jr., Esq.
| | There are three general types of actionable defects in product liability suits: Manufacturing defects are the most straightforward. A product supplier puts a product into the stream of commerce that deviates from his own design in a way that causes injury to the consumer. While the primary issue is whether the manufacturing defect was the proximate cause of injury, the product is subject to scrutiny because it allegedly failed to fulfill both the supplier's and the consumer's expectations. Design defects are more complicated, involving liability where the design itself is the proximate cause of injury. Liability will be imposed if the design is dangerous to an extent beyond that which would be contemplated by the ordinary consumer (the "consumer expectations test") or if the risks of the particular design outweigh its benefits (the "risk utility test"). The focus of this newsletter is marketing defects, which arise when a plaintiff's injury could have been avoided if plaintiff had been provided adequate information regarding the product's hazards. Generally, a product has a marketing defect when the product supplier (1) knew or could have reasonably foreseen the hazards associated with the product's use, (2) failed to provide the consumer with sufficient warnings or instructions regarding the hazards and the safe use of the product, and (3) the lack of such information proximately caused the plaintiff's injury. Thus, a marketing defect may exist regardless of the product's lack of a manufacturing or design defect. Of course, there are limitations upon this liability - such as where the plaintiff himself is an expert, or when the danger is open and obvious. A product supplier, however, cannot absolve himself of liability for putting an otherwise defective product into the stream of commerce merely by warning the consumer of its defects. There is also an emerging issue involving the so-called continuing duty to warn about information acquired after the manufacture and sale of a product. Generally, such continuing duty to warn arises if the safety related information is serious enough to merit providing the consumer with a warning, and if imposing this duty to warn is reasonable under all of the surrounding circumstances. The Duty to Warn A product may be found to be in an unreasonably dangerous defective condition, even if properly designed, if the product supplier fails to warn the user or consumer of latent dangers in the use or operation of the product. A product supplier has a duty to warn (1) when there are dangers inherent in the product about which the product supplier knew or should have known, (2) when there are dangers inherent in the product that can be avoided by following appropriate precautions and safeguards, (3) when there are dangers that emerge when the product is used for a foreseeable but unintended purpose, and (4) when required by statute. However, there is no duty to warn of a patent or open and obvious risk. Adequacy of the Warning Once a duty to warn has been established, the adequacy of the warning is at issue. To be adequate, a warning must be "comprehensible to the average user ... conveying a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person." In determining such adequacy, the court will assess the extent to which the plaintiff and the defendant each knew of the danger; as a result, a determination of adequacy is fact-dependent. Only in exceptional cases is a warning found to be adequate as a matter of law. "Courts generally hold that whether a warning is adequate depends upon a balancing of considerations."
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Courts generally hold that the determination of whether a warning is adequate depends upon a balancing of considerations, including, among other factors, the severity of the danger ... the likelihood the warning will catch the attention of those who will foreseeably use the product and convey the nature of the danger to them ... the intensity and form of the warning ... and the cost of improving the strength or mode of the warning. To put it another way, an adequate warning (1) must alert the consumer or user to the severity of the hazard that he faces, where severity is a function of both the magnitude and likelihood of the hazard encountered, (2) must clearly state the nature of the hazard, (3) must clearly state the consequences of the hazard, (4) must provide instructions on how to avoid the hazard, (5) must be prominent or clearly visible at the point of use, and (6) may illustrate the nature and severity of the hazard through the use of pictographs, especially through the use of standard international symbols and colors. next column | A troublesome issue facing any product supplier is deciding what risks warrant a warning. While it is possible to warn of every danger, the resulting "warning overload" will overwhelm the recipient and may actually make the product less safe. For example, a construction worker used a drill near a natural gas ventilation pipe and the sparks from the drill caused an explosion. The plaintiff alleged that the drill did not have an adequate warning regarding the risk of explosion if used near combustible gases. However, the drill did have a label that instructed the user to consult the owner's manual for safe operation. The manual contained 18 separate warnings, one of which specifically warned that the drill should not be used near combustible gases. The court rejected the argument that all 18 warnings should be on the drill because "a consumer would have the tendency to read none of the warnings if the surface of the drill became cluttered with the warnings." The court upheld the jury verdict which held that the label's instruction to consult the manual before operation was adequate. See Scott vs. Black and Decker, Inc., 717 F.2d 251, 254 (5th Cir. 1983). Proximate Causation This basically involves a "but for" determination between the conduct and the event which led to the injury. In effect, in a duty-to-warn case, the plaintiff must establish that the failure to warn or inform was the cause in fact as well as the proximate cause of the plaintiff's injury. In most states, the plaintiff is entitled to a presumption that, had an adequate warning or instruction been provided, the user would have "read and heeded such admonitions." In defense, the supplier can assert or can introduce evidence to the effect that the plaintiff would have failed to read or heed an adequate warning or instruction even if one was provided. Advertising Claims In a limited number of cases, manufacturers have been held liable on the basis that their commercial advertising and solicitations induced the consumer to use the product in an unsafe manner. RESTATEMENT (SECOND) OF TORTS §402B. Mere "puffing" or "sales talk" will not create liability. The Experienced User The courts in Massachusetts and elsewhere will usually hold that there is no duty to warn a group or class of users who possess special knowledge or expertise regarding the dangerous characteristics of a product. Instead, the jury is allowed to properly evaluate the warnings considering plaintiff's background and experience. See Hopkins vs. Chip-N-Saw, Inc., 630 F.2d 616 (8th Cir. 1980) (manufacturer had a duty to provide safe warnings directly to the operators of a lumber cutting machine if it were foreseeable that the buyer would not pass on warnings to the operators, in light of evidence that a safety device provided by the manufacturer was so constructed as to encourage the operators to render it inoperable so as not to interfere with the operation of the machine). The Continuing Duty to Warn Generally, the duty to warn users is limited to the manufacturer's actual or constructive knowledge at the time of sale. However, the manufacturer's knowledge of the characteristics of the product may increase over a period of time, and it may become aware of risks and hazards associated with the product's use that were not known at the time of sale. Many courts now impose on manufacturers a "continuing duty to warn" users post-sale of newly acquired information germane to the safe use of the product. This after-acquired information may come to the manufacturer through accident reports or advancements in the state of the art - none of which information was available to the manufacturer at the time of the sale. Once again, whether a continuing duty to warn exists is fact-dependent. As a general rule, such continuing duty to warn will only be imposed when "reasonable." It does, however, place upon a prudent manufacturer a continuing duty to reassess the adequacy of warnings or instructions previously given on its products. Philip J. Callan, Jr. is a senior shareholder with Doherty, Wallace, Pillsbury and Murphy, P.C. in Springfield. He has significant trial experience in the area of product liability.
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