Failure to Warn
Even when there is no design flaw, nor any manufacturing defect, a product can be defective because of inadequate instruction or lack of appropriate warnings. Manufacturers, distributors, and sellers may be held liable when they fail to give appropriate warnings, and a consumer suffers an injury. A failure to warn is considered a marketing defect in a product liability case.
Although warnings are often included with products, they are not required in all cases. In most jurisdictions, they are required if the product is dangerous in a nonobvious way, the manufacturer knows about the danger, and the danger is present when the product is used as it is intended or used in another reasonable and foreseeable way. These standards vary depending on the product involved and the consumer.
The issue of whether there was a non-obvious risk of injury can be contentious. In certain cases, however, it is clear. For example, a knife does not need a warning that it cuts. However, a baby's car seat probably does need to come with weight specifications or a warning that if a baby is over a certain weight, the car seat will no longer function for its intended purpose of protecting the baby.
The issue of whether the plaintiff's misuse was foreseeable can also be contentious. Many consumers misuse the products they buy, and many consumers ignore warning labels. However, liability is only limited through clear warnings. When a plaintiff's misuse of the product is outlandish and unpredictable, a defendant will not be responsible for a failure to warn. However, if the misuse was foreseeable, the defendant can be held liable for a failure to warn.
Manufacturers must warn of hidden dangers in a product and how to use the product to avoid dangers and use it in a safe manner. If a warning is required, it must be clearly visible and written in plain, accessible language so that the consumer is likely to see it and understand the risk that the warning describes. Some products must have warnings printed directly on the product or indicated through bright warning stickers. This is to guard against the possibility or likelihood that the product will be used by somebody who will not look at the packaging or manual. There is no prescribed universal warning, but in general it should be comprehensible. Many manufacturers try to reduce liability by offering warnings in foreign languages.
How Does a Manufacturer Defend a Failure to Warn Lawsuit?
The most common way a defendant fights a failure to warn lawsuit is by showing that the consumer did not follow or abide by the warning. For example, if a cleaning product has a "toxic" label, and a consumer uses the product to clean her child's crib or toys, the consumer will not have abided by the warning.
Defendants cannot defend on the grounds that they were unaware of the risk, if the risk was foreseeable or discoverable by conducting research, testing, and investigation. Defendants must stay knowledgeable about their products. When new information comes to light, defendants must warn consumers that have already purchased the product. In some cases, a product recall is appropriate.