1222. Negligence - Manufacturer or Supplier - Duty to Warn—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent by not using reasonable care to warn [or instruct] about the [product]'s dangerous condition or about facts that make the [product] likely to be dangerous. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [product];

2. That [name of defendant] knew or reasonably should have known that the [product] was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner;

3. That [name of defendant] knew or reasonably should have known that users would not realize the danger;

4. That [name of defendant] failed to adequately warn of the danger [or instruct on the safe use of the [product]];

5. That a reasonable [manufacturer/distributor/seller] under the same or similar circumstances would have warned of the danger [or instructed on the safe use of the [product]];

6. That [name of plaintiff] was harmed; and

7. That [name of defendant]'s failure to warn [or instruct] was a substantial factor in causing [name of plaintiff]'s harm.

[The warning must be given to the prescribing physician and must include the potential risks or side effects that may follow the foreseeable use of the product. [Name of defendant] had a continuing duty to warn physicians as long as the product was in use.]

Directions for Use

The last bracketed paragraph is to be used in prescription drug cases only.

Sources and Authority

A manufacturer "has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom he should expect to use the product or be endangered by its probable use, if the manufacturer has reason to believe that they will not realize its dangerous condition." (Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1076-1077 [91 Cal.Rptr. 319].)

"Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about." (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002 [281 Cal.Rptr. 528, 810 P.2d 549].)

Restatement Second of Torts, section 388, provides: One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Restatement Second of Torts, section 394, provides: "The manufacturer of a chattel which he knows or has reason to know to be, or to be likely to be, dangerous for use is subject to the liability of a supplier of chattels with such knowledge."

These sections have been cited with approval by California courts. (See Putensen, supra, 12 Cal.App.3d at p. 1077 and cases cited therein.)

There is no duty to warn of obvious defects. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 966 [257 Cal.Rptr. 610]; Holmes v. J.C. Penney Co. (1982) 133 Cal.App.3d 216, 220 [183 Cal.Rptr. 777]; Morris v. Toy Box (1962) 204 Cal.App.2d 468, 471 [22 Cal.Rptr. 572].)

"When a manufacturer or distributor has no effective way to convey a product warning to the ultimate consumer, the manufacturer should be permitted to rely on downstream suppliers to provide the warning. 'Modern life would be intolerable unless one were permitted to rely to a certain extent on others doing what they normally do, particularly if it is their duty to do so.' " (Persons v. Salomon North America (1990) 217 Cal.App.3d 168, 178 [265 Cal.Rptr. 773], internal citation omitted.)

The duty of a manufacturer to warn about the potential hazards of its product, even when that product is only a component of an item manufactured or assembled by a third party, has been recognized, but is limited. (See Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 449 [196 Cal.Rptr. 52]; Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 837 [71 Cal.Rptr.2d 817].)

Secondary Sources

California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21, Ch. 7, Proof, § 7.05 (Matthew Bender)

19 California Points and Authorities, Ch. 190, Products Liability (Matthew Bender)

(New September 2003)