Adequate WARNINGS have become a part of everyday life from the instructions in brightly colored bold type on our hair dryers to the balsamic vinegar we use on our spinach salad. Adequate warnings can enhance the quality of a product, reduce the risk of injury to consumers and others when using the product, limit a company’s product liability exposure, and increase consumer safety and satisfaction.
The purpose of the warning is to provide notice to the consumer about known or reasonably foreseeable risks or harm that could result during the use of the product and to provide the means to reduce or avoid these risks. Under the law of almost all jurisdictions, a manufacturer has an affirmative duty to provide a warning when it knows or reasonably should know that its product is dangerous or likely to be dangerous when used in a reasonably foreseeable manner.
Composing a Warning
The goal of every manufacturer is to provide an adequate warning. Product liability law operates under the general premise that an inadequate warning is no better than no warning at all. In order for a warning to be adequate it should:
- Describe the actions that the consumer should do or not do, depending on the circumstance, in the use/care/storage/disposal of the product.
- Describe the consequence of the consumer’s failure to follow the instruction(s).
- Be presented in a manner that alerts the consumer about the warning
Courts have not set forth specific elements of an “adequate” warning. Instead, what makes an adequate warning is dependent on the given circumstances and therefore is usually a jury question. However, case law has shown that the adequacy of a warning can become a question decided by the judge as a matter of law where the warning is found to be clear, accurate and unambiguous.
When a warning is required is, not too surprisingly, very broad. Even situations where the danger seems obvious generally require some type of warning. For instance, the parents of a high school baseball pitcher brought a lawsuit after their son was fatally injured when a baseball hit by an aluminum bat struck and killed him. The Montana Supreme Court upheld a verdict for the parents finding that the manufacturer had failed to warn that the bat could deliver hits at a high velocity.
Defending Claims
When a product liability claim proceeds to court, most jurisdictions have a presumption that warnings will be read and heeded by the consumer. A product liability claimant will try to use this presumption to its benefit by presenting alternative warnings that would have potentially prevented the injury. Therefore, when crafting warning language about known dangers, carefully evaluate whether the warning, if read and heeded, would prevent the known danger from causing injury. One court stated simply: “If the manufacturer provides warnings that, if followed, would prevent the incident at issue, then the manufacturer is not liable.”
While courts have not set forth the specific elements of an adequate warning, some states have statutorily defined the standard for deciding what constitutes an adequate warning. For instance, in Mississippi an “adequate product warning…is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product.”
Aside from the language used in a warning, failing to present the warning in a manner that alerts the consumer about the dangers can often be cause for a claim. Therefore, where a warning is of the nature that it causes a potential claimant to fail to notice or read the warning that causes injuries, the warnings are considered inadequate.
Whether the warning itself provides information prominent enough to be read and sufficient enough to inform the consumer of the danger is usually left to those sitting in the jury box. As one judge explained: “Who better to determine whether a warning should be provided than the people to whom the warning would be addressed? A layperson is in a position (if not the best position) to know whether a particular harm or possible harm is deserving of a warning.”
Too Much?
While providing a warning about the potential dangers of a product is important, too much warning information has also been used against a manufacturer under the theory that the amount of information diluted the most serious concerns regarding the product. A catch 22? Possibly. However, a company will be much better off defending itself for over warning than under warning.
Step into the shoes of the consumer and judge the adequacy of the following — do they go too far or not far enough?
From the label of a toilet bowl cleaning product: “Safe to use around pets and children, although it is not recommended that either be permitted to drink from the toilet.”
From the instructions for an electric rotary tool: “This product not intended for use as a dental drill.”
From a hair dryer label attached to the electric cord: “WARNING — to reduce the risk of death do not use in tub, shower or sink – KEEP AWAY FROM WATER.”
Who Should Compose
It is always the best practice for the manufacturer to write the text for a warning. They should be the most knowledgeable regarding consumer safety, the product’s intended use, and the manufacturing process and materials associated with their product. [Move next sentence to para. Below]Retailers, or others, who become involved in writing or editing a warning may be exposed to liability should an issue arise regarding the adequacy of the warning. In almost all jurisdictions, product liability law protects a retailer from liability for the design, manufacture and warnings applied to a product if they have not been involved in those processes. Instead, a retailer’s liability is limited to negligent acts or omissions by the retailer during the handling or sale of the product. Significantly, retailers should note that liability can include written or verbal representations by retailers that go beyond representations made by the manufacturer.
Warning Placement
More than one court has emphasized the importance of warning the end user if there is a reasonable means of doing so. Thus, with a warning on the product itself, the manufacturer is reasonably reaching any potential end user. In the consumer process, loose labels, hang tags and product instructions get lost all too easily. To protect your company and ensure that the end user receives the information contained on the warning, attach the warning label securely to the product.
The label should not be easily pulled off or easily removed. For example, the warning labels on most electrical appliances cannot be torn off and although the warning information is also often repeated in instruction booklets, the label that contains the warning generally needs to be secured to the product in order to be adequate.
In sum, this article is a warning to all businesses involved in product manufacturing, distribution and sales to fully evaluate the dangers associated with their products and take reseasonable steps to alert consumers to those dangers. Failing to do so can result in unnecessary consumer injury or property damage and can adversely affect your company’s bottom line.
Best Practice Pointers
- The warning on a product needs to be able to meet, or exceed, the legal standard in every jurisdiction in which the product is sold.
- Retailers should avoid signing off on the manufacturer’s request to approve the text of the warning. Approving the warning may result in liability exposure for the retailer should it be determined that the warning was inadequate. Always discuss your concerns about the warning with the manufacturer and keep good notes.
- Review warnings periodically and determine if they are still adequate in light of consumer reviews and reports of injury or property damage. Warnings may need to be revised when the manufacturer or retailer discovers a dangerous condition associated with the use of a product.
- For labels attached to the product itself, consider including a 1-800 number or website address directing the consumer to an instruction booklet or further explanations regarding product use and warnings.