Products Liability – The Failure to Warn
A company can be found liable for injuries caused by their products when the company failed to provide a warning for the potential dangers of the product or adequate instructions on how to safely use the product. This is called a “failure to warn” in strict products liability and negligence in products liability suits. The determining question of a failure to warn cause of action is whether the risk of the injury the Plaintiff suffered was obvious, or completely unpredictable. Generally, all sellers in a product’s distribution chain have a duty to warn about known hazards, although this duty can be discharged with a reasonable reliance on others to warn, such as the provable knowledge of adequate warnings already included by another within that distribution stream.
If the Plaintiff’s use of the product was not a use that the company should have reasonably predicted, the company will generally not be held liable for failing to warn of the consequences of the unpredictable use. By that same logic, if the Plaintiff’s use of the product was predictable, or by its intended use, the company will likely be found liable. However, if the Plaintiff uses the product in such a way that the risk was obvious to any reasonable person, and the Plaintiff continued the use in the face of that obvious risk, the company will not be found liable for failing to provide a warning for an obvious risk.
The product warning cannot be placed in such a location as the user of the product is unlikely to find it, such as buried in a technical instruction manual in fine print. Additionally, the warning must be written in such a way that the user could reasonably expect to understand the warning. The warning should be contained on the packaging of the product, or in its own separate form included within the packaging of the product with those dangers the Company determines to be the biggest threat boldened and presented to capture the attention of the consumer.
A Defendant cannot simply plead they were unaware of the risks associated with the product without showing some proof that they have properly researched, tested, investigated, and incorporated the relevant feedback from consumers when designing the warning for this product. A Company developing a product must have done some study to determine what risks can be found from the sue of the product.
If a company is faced with a failure to warn suit against them on a product they have either manufactured, produced, distributed, or otherwise sold it is imperative they hire a competent attorney who is experienced in product’s liability cases to determine if the company owed a duty to warn of the specific harm, and whether that adequate warning was provided.