"Failure to Warn" in a Defective Product Case

If a manufacturer fails to adequately warn of potential dangers of its products' use, it may be liable for any resulting injuries.

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. This article discusses the elements of a failure to warn case, and common defenses that may arise in response.

Failure to Warn in Strict Products Liability Lawsuits

Strict products liability is the rule governing consumer product injury lawsuits in most states. 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, on the other hand, an auto manufacturer was liable for failing to warn that the seats in its car might collapse backwards in an accident if the driver was overweight.

Failure to Warn in Negligence Cases

Only a few states still follow an ordinary negligence rule in products liability cases. In these states, the plaintiff must prove that the defendant owed the plaintiff a duty of care, that a failure to provide an adequate warning breached that duty, and that the failure caused the plaintiff’s injuries.

As with strict product liability cases, the central issue is generally whether the risk that caused the injury was so obvious that no warning was necessary, or the risk could not have been predicted. For this reason, whether a state follows strict liability or negligence rules will not make a plaintiff’s failure to warn lawsuit any more or less likely to succeed -- although a plaintiff suing under negligence will not be able to sue the manufacturer, distributor or retailer regardless of the level of care they demonstrated, as he or she would be able to do in a strict liability case.

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.

See Defenses in a Product Liability Lawsuit to learn more about the ways a manufacturer can avoid legal liability.

Warning Must Be Conspicuous

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.

Defendant Must Stay Knowledgeable and Discover Risks

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.

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