Defective Product: Failure To Warn
Michael Babboni
Personal Injury
We have all seen the warning signs on some of our most commonly used products. You get grab a coffee at the local shop and spot a “caution: hot beverage” on the side. There is a warning on the cigarette box in your pocket that says “warning: causes cancer”. Your 7 year old child puts a quarter in for a small plastic toy with “caution: choking hazard” on it. It can feel like you can’t go a few steps without some sort of warning sign or caution message popping up.All of these warning signs may feel like they go overboard, but they are crucial to keeping you informed and safe from any dangers that could occur. However, what happens when a product doesn’t warn you about its dangers and causing you or a loved one to be harmed?
A manufacturer, distributor or retailer can be held liable for a failure to provide adequate warnings on a product, if a consumer suffers an injury as a result.
Failure to Warn in Strict Products Liability Lawsuits
Under strict product liability, the defendant is held liable for product defects regardless of whether the company or business acted negligently. A failure to provide adequate warnings is considered a product defect in strict liability cases.
Perhaps the most common dispute in strict liability cases involving a failure to warn is whether the risk of the injury the plaintiff suffered was obvious, or was completely unpredictable.
For example, a match book would not be required to come with a warning stating that the matches might start a fire. In a recent case, however, a car manufacturer was liable for failing to warn that the seats in its car might collapse backwards in an accident if the driver was overweight.
Little things like that can make these cases a bit more complicated and at times it may not even sound like it makes any sense. However, the central issue is generally whether the risk that caused the injury was due to one of three reasons.
1. Intended use or predictable misuse of the product
Aside from whether the risk was obvious or not, a central question is whether the plaintiff was using the product as intended or misusing it in a predictable way.
If a plaintiff’s misuse of the product was not something a defendant could predict, the defendant will not be held responsible for failing to warn about the consequences of the unpredictable misuse. However, if the defendant could have predicted that a consumer would use a product in a certain way, and the risks of that use were not obvious, a defendant may be held liable for a failure to warn.
2. Warning was vague or hard to find
It is not enough to provide an important product warning buried somewhere in a dense, technical instruction manual. The warning must be understandable to the average user of the product, and it must be visible in a way that an expected user would see the warning.
This means that some products are required to have a warning directly on the product itself, if the product is likely to be used by someone who will not see the packaging or have access to a manual. A common example of this are the warnings placed directly on power tools.
3. Danger was obvious or commonly known about the product
A defendant cannot escape liability for a failure to warn simply because it was unaware of the risk. A defendant is under a duty to stay knowledgeable about its product. If it was possible to discover the risk through reasonable research, testing and investigation, the defendant will be held liable for failing to warn about a risk it should have known about.
Additionally, if new information comes to light, a defendant is required to warn consumers that have already purchased a product about the newly discovered risks.