Failures to Warn Supporting Products Liability Legal Claims
Defective products that appear in headlines generally suffer from manufacturing or design defects, but consumers sometimes use a third basis for liability in these cases. This is known as a failure to warn, or a marketing or warning defect. A claim based on a failure to warn does not assert that the product has any physical flaws. Instead, a plaintiff bringing this claim alleges that the manufacturer failed to provide adequate warnings or instructions about the safe use of the product, and they were injured due to the undisclosed risk. If they prevail, they can receive damages for economic and non-economic losses, ranging from their medical costs and lost income to their pain and suffering and lost enjoyment of life.
Sometimes a warning does not appear on a product. A manufacturer might put a warning on the packaging for the product or in a manual. Depending on the situation, this may not be good enough to avoid liability. If a likely user of the product will not see the packaging or the manual, they would not see the warning either. In these cases, the manufacturer might need to put the warning on the product directly to ensure that it is visible to people who would face the risk. While some products are complex and technical, a manufacturer also has a duty to convey the warning in language that the typical user would understand.
Defenses to Failure to Warn Claims
One way to defend these cases involves arguing that the risk was obvious. Although approaches to this situation vary somewhat among jurisdictions, an obvious risk generally does not require a warning. For example, a steak knife probably does not need to bear a warning that it is sharp, since a person buying or using a steak knife should expect this. If an ordinary person would not be able to recognize the risk by using common sense, though, a manufacturer probably cannot use this defense.
Common Defenses to Failure to Warn
The risk was obvious
The misuse was not foreseeable
Another strategy for defending failure to warn cases involves arguing that the plaintiff did not use the product in a reasonably foreseeable way. Consumers do not necessarily need to use products in the precise way that was intended by the manufacturer. A lack of warnings related to a predictable misuse still may expose a manufacturer to liability, if the risk related to that misuse was not obvious. On the other hand, if a consumer used a product in a completely unpredictable way, the manufacturer will not be liable for failing to warn about a risk that it could not have reasonably foreseen.
Manufacturer Knowledge and Liability
A manufacturer will not necessarily escape liability if it did not know about the risk for which it failed to provide warnings. Actual knowledge is not required in a failure to warn claim. If the manufacturer reasonably should have known about the risk, it may be held liable for the injuries. Determining whether knowledge should be imputed to a manufacturer usually requires considering the steps that a reasonable manufacturer would have taken in developing and testing its product. If these likely would have revealed the risk, a lack of actual knowledge caused by failing to take these steps is not a defense.
A defendant may be held liable for a risk of which it should have known, even if it had no actual knowledge of the risk.
Manufacturers must continue to monitor any potential safety issues related to their products. If a risk emerges down the road, the manufacturer must warn owners and users of the product about this newly discovered risk. Failing to take this step also can lead to liability for a failure to warn.