Manufacturers at the turn of the century were shielded from liability for many product-related injuries by "no duty" rules reflecting the laissez-faire approach to market regulation that characterized nineteenth century legal thought.1 Through most of the twentieth century, products liability law steadily evolved toward protection of consumers, culminating in the 1960s and 1970s with widespread judicial acceptance of section 402A of the Restatement (Second) of Torts, which imposed liability on manufacturers for injuries caused by dangerous products, without regard to fault.2 The purpose of such "strict liability" is to make product prices reflect expected injury costs, thus creating incentives to avoid injuries3 and spreading the risk of unavoidable injuries among all consumers.4
Then, in the 1980s, manufacturers and their insurers launched a campaign against the courts' expanded imposition of products liability.5 Seizing upon a temporary spike in insurance rates,6 they fostered a popular belief in an "insurance crisis" that they blamed on increased liability exposure, and parlayed the resulting "products liability crisis" into legislative and judicial "tort reform" in many jurisdictions.7 Tort reform proponents also lobbied Congress in an effort to achieve a nationwide reduction in manufacturer liability.
In the 1990s, the thrust of the newly released Restatement (Third) of Torts: Products Liability addresses the duty to warn, and the role of foreseeability. It generally follows current Texas law as it has developed since Texas first formally recognized this strict liability tort in 1967. In the new Restatement, the withdrawal of tort law from production/consumption decisions is accomplished by rejection of enterprise liability and product category liability; and its withdrawal from design decisions is effectuated by rejection of the consumer expectations test of hindsight-based imputation of knowledge. In place of these tests, the new Restatement requires proof of a "reasonably alternative design" as an element of a design defect claim. In the midst of what is generally a broad- based, scholarly work, these changes stand out as controversial tort reform initiatives. Twentieth century courts and commentators have made great strides in freeing the law of products liability from the nineteenth century conceptions of beneficent industry and a self-regulating market. The adoption of section 402A signals a shift from protecting manufacturers (by focusing on fault) to protecting consumers (by focusing on their expectations about products). Set against this progressive background, the new Restatement appears to have come full circle.
Generally in products liability cases, the Plaintiff has many possible theories of liability available to them, including:
1. Marketing Defecta) the product contained a defect; b) the defect existed at the time the product left the possession or control of the manufacturer or seller; c) the defect made the product unreasonably dangerous for its intended and foreseeable uses; and d) the unreasonably dangerous condition of the product caused the injury.
2. Implied Warranties of Merchantability and Fitness for a Particular Purposeimplied warranties are present in every sale of goods. Goods are merchantable if they are of average and acceptable quality and are generally fit for the purposes for which the goods are used. Fitness for a particular purpose means that the goods are going to be used for a particular purpose of which the seller knows or has reason to know. If there is a danger beyond the contemplation of the ordinary use of the product that is known or reasonably knowable by the product supplier at the time of marketing, the manufacturer then has a duty to warn of dangers or risk of harm.
3. Representation Theories (express warranty and misrepresentation)The two misrepresentation theories under which a plaintiff may pursue a cause of action are express warranty and misrepresentation of fact. An affirmative representation regarding the goods which is part of the essence of the bargain establishes an express warranty. Under these circumstances, the Plaintiff must only show that the product did not live up to its warranty. A seller will be liable for a misrepresentation of fact pertaining to a product if a) a statement regarding the product was a material fact concerning the quality or uses of goods; and b) the seller intended that the buyer rely on the misrepresentation.
4. Negligenceincludes a showing of a) duty; b) breach; c) actual and proximate cause; and d) damages, which occurs when the manufacturer or product supplier negligently supplies a product that is unreasonably dangerous for its intended and foreseeable uses.
5. Strict Liabilitya) strict liability owed by a commercial supplier; b) breach of that duty; c) actual and proximate cause; and d) damages.
6. Intentliability is based on an intentional tort and is not very common in products cases, i.e. the Defendant intended the consequences or knew that they were substantially certain to occur.
One of the areas where the Restatement (Third) notably departs from current Texas law is the area addressing the continuing duty to warn with respect to marketing defects, which is the area this article will focus on. Importantly, Texas courts impose a requirement of foreseeability of the risk of harm as a basis for the duty to warn. In theory, if a manufacturer is unable to limit its liability to risks that were either known or knowable at the time of manufacture and distribution, it would be discouraged from developing new and improved products for fear that advances of scientific knowledge would impose unanticipated liability.
Duty to Warn
First, a risk is not unreasonably dangerous unless it presents a danger beyond the contemplation of the ordinary user of the product. Consider the following possible allegations:
a. Total failure to warn of dangers or risks of a harm;
b. The failure to warn adequately of dangers or risk of harm;
c. The total failure to provide instructions for safe use; or
d. The failure to provide adequate instructions for the safe use of a particular product.
The elements of a marketing defect cause of action with regard to implied warranties of merchantability and fitness as to duty to warn are:
A risk of harm that is inherent in the product or that may arise from its reasonably anticipated use of the products;
The product supplier actually knows or reasonably foresees the risk of harm at the time the product is marketed;
The absence of a warning and/or instructions renders the product unreasonably dangerous to the ultimate user; and
The failure to warn and/or obstruct constitutes a causative nexus to the product users' injuries.
The duty to provide a warning or to furnish instructions for safe use arises only when the product is established to be unreasonably or inherently dangerous in the absence of a warning or instruction for safe use. The duty to warn requires that, as a predicate, the danger or unreasonable risk of harm be either known or reasonably knowable by the product supplier at the time of the marketing. Foreseeability of harm means that which is objectively reasonable to expect and not merely that which might conceivably occur. In sum, foreseeability of the likelihood of injury in the use of a product is the bottom line inquiry for imposing a duty to warn.
The existence of a duty to warn of danger and to instruct on proper use is a question of law. The duty to furnish an adequate warning or instruction for safe use is predicated on the policy that the consumer or user of a product is entitled to all available relevant information to make an intelligent and fully informed choice in selecting a product. The user must be afforded the opportunity to weigh the utility of the product against the extent and degree of the potential risk of harm that may exist by reason of the expected uses of the product. Importantly, the product supplier is obligated to keep abreast of scientific knowledge, advances and information and to produce adequate warnings of dangers that are ascertainable through scientific advances and breakthroughs. A manufacturer is held to the degree of knowledge and skill of an expert in the area.
Finally, a manufacturer owes no duty to warn of dangers and risks associated with another manufacturer's product, even though its products may be used in combination with the manufacturer's own product. A manufacturer is not charged with the duty to warn of risks associated with component parts supplied by other manufacturers that are incorporated into the manufacturer's completed product. Even if the original designer of a system or prototype gives a design to another party, this does not impose strict tort liability on the original designer who neither manufacturers, distributes, nor participates in selling the particular product. And the original designer is not obligated to police its trademark under which the defective product was marked.
Types of Risks That Compel A Warning
The duty to warn or to provide instructions for safe use arises initially when it becomes known or it is reasonably foreseeable that a particular product may pose a serious risk of harm or danger when used for its intended uses or reasonably foreseeable misuses. The Restatement (Third) defines a defect in warnings in a product to be defective "because of inadequate instructions or warnings when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution and the omission of the instructions or warnings render the product not reasonably safe."
The four types of dangers that mandate a warning are:
A risk or danger inherent in the design of the product;
Foreseeable dangers or risks of harm from unintended uses of a product;
Risks or dangers that effect only a limited number of users possessing an unusual susceptibility to the product; and
Unavoidably unsafe products.
Limitations on Duty To Warn
Several significant limitations govern the duty to provide warnings of dangers and instructions for safe use. There is no duty to warn ultimate users or consumers of dangers that are so clearly obvious as to be apparent, even to the most ignorant and uncaring. The determination of whether a manufacturer has a duty to warn is made at the time the product leaves the manufacturer. Therefore, courts necessarily must make the judgment whether a product is unreasonably dangerous from an objective viewpoint, and the testimony of an individual does not control a court's determination of whether a risk is open and obvious as a matter of law. Obviousness of the risk is measured from the perspective of the average user of the product, rather than the average person.
The duty to warn is also limited to the hazards of which the ordinary consumer/user is unaware. Further, there is no duty to warn of dangers and risks of harm that are common knowledge to the public or to an industry and generally known to the consuming public. For example, the rule of non-liability for dangers inherent in alcohol and tobacco products has been codified in the newly enacted Products Liability Act.
Be aware that prescription drugs are not held to this standard for public policy reasons:
The imposition of strict tort liability would interrupt both research and production of the critical drugs because of lost profits from lawsuits;
Consumers have a vested interest in the prompt and early availability of the latest pharmaceutical products; and
The additional expense of insuring against strict tort liability would increase the cost of critical drugs to the point that such new drugs would no longer be affordable to the consumer. The purpose of this caveat is designed to protect from strict tort liability products that cannot be designed or produced more safely. Products that are mismanufactured or unaccompanied by adequate warnings are not protected by the unavoidably, unsafe exception.
The sophisticated user rule also limits the duty to warn when the product is marketed to a group or class of users who possess a special knowledge, sophistication, or expertise about the characteristics and properties of the particular product. The mere fact that a particular group or class of users may possess an expertise, however, does not excuse the product supplier from providing an adequate warning and instructions for safe use of products that may contain hidden, unknown or unexpected dangers, even to an experienced user of the product. Interestingly, an adequate warning that a product should only be used by a professionally trained person is generally adequate to define the parameters of users as a matter of law. The sophisticated user defense, under some limited circumstances, may be applied in cases when the employer was aware of risks and dangers of a product it purchased for use by its employees.
Elements of an Adequate Warning and/or Instruction
For a warning of danger or instructions for safe use to be legally adequate it must:
Be in a form that could be reasonably expected to catch the attention of the reasonably prudent person and the circumstances of the products use;
Be of such a nature as to be comprehensible and convey a fair indication and nature of the extent of the danger to the mind of the average user; and
Provide instructions as to the manner of avoiding the risks and dangers involved.
Whether a warning is adequate is generally considered an issue for the trier of fact. Adequacy necessarily contemplates that the warning be tailored for those individuals who are anticipated users of the product. Mere directions for safe use do not per se satisfy the duty to warn of the risk of harm or dangerous characteristics of a product.
There is a significant distinction between instructions and warnings. Instructions are designed to insure the most satisfactory, efficient and safe use of the product in light of its known dangerous properties while warnings advise the user of dangers that may occur if the instructions for safe use are disregarded or the product is used improperly. A product supplier may be required to furnish a warning that details the potential risk of harm in the event adequate instructions or directions accompanying the product are disregarded.
For the warning to be adequate and/or the instructions for safe use to be appropriate, the warnings and/or instructions must be conspicuous and clearly visible. A warning that is too small in size of print or inappropriately located on the product may be inadequate. The warning must adequately and effectively communicate the risk or dangers associated with the use of the product. Symbols such as a scull and crossbones may be required rather than bold, written warnings that are subject to misinterpretation when the dangers are potentially lethal. Likewise, products marketed in a Hispanic environment using English rather than Spanish or symbols may be inadequate.
Finally, warnings must be placed in a location likely to communicate the danger, including possibly placing the warnings on the product itself as opposed to an accompanying manual. The warnings or instructions must be neither ambiguous nor vague in context. The warnings must not be unduly narrow in scope and the location and placement of warnings is critically important and is usually dependent on the nature of the product. In sum, clarity and specificity of the warning and direction for use are the most important elements.
Presumptions Relating to Warnings
In the absence of an adequate warning, a rebuttable presumption arises that the user would have read and heeded the warning and avoided the injury-producing event. This presumption may be rebutted by showing that the user would not have read an adequate warning label even if it was affixed to the product, that user was ignorant, uncaring or illiterate or that the user was aware of the risk and either attempted to avoid the risk or simply ignored it. Evidence that rebuts the presumption must arise prior to the time that a plaintiff's response is presumed. However, a single instance of inattentiveness by the product user does not excuse the duty to provide an adequate warning. Additionally, the inattentiveness must be unrelated to the plaintiff's ability to perceive and heed warnings and the use of a product. The fact that a plaintiff would have read and heeded an adequate warning effectively rebuts the presumption and creates a fact issue for the jury.
Moreover, the failure of a product user to read a warning on a product bars a claim for strict tort liability, even if the warning is inadequate, if the inadequate warning had been read and heeded would have prevented the user's injuries. Evidence that the injured party was aware of the dangers of a product and would have used the product notwithstanding an inadequate warning defeats liability based on a failure to warn. When an adequate warning is given, however, the product supplier may reasonably assume that the warning and instruction for safe use will be read and heeded and a product bearing such a warnings, which is safe for use if followed, is not defective or unreasonably dangerous.
Continuing Duty to Warn
The Restatement (Third) poses a post-sale duty to warn under certain circumstances. This would change existing Texas law, which provides no continuing duty to retrofit or provide warnings of additional information discovered after a product has been sold unless a manufacturer assumes a duty and then fails to discharge that duty.
The Restatement (Third) provides four elements specified for a post-sale duty to warn including:
The seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property;
Those to whom a warning might be provided can be identified and may reasonably be assumed to be unaware of the risks;
A warning can be effectively communicated to and acted on by those to whom a warning might be provided; and
The risk of harm is sufficiently great to justify the burden of providing a warning.
In failure to warn or provide instructions for safe use cases (marketing defect), the plans must establish that the manufacturer and/or product supplier knew or could reasonably have foreseen the risk of harm from the use of the product in the absence of adequate warnings or instructions. Moreover, the showing that the manufacturer failed to warn of a danger is not sufficient standing alone. A plaintiff must establish that an adequate warning would have altered conduct and would have prevented the injuries that occurred. The burden of establishing causation rests on the plaintiff and generally represents a fact issue for the trier of fact. The manner in which the accident occurs may circumstantially establish producing cause.
The failure to demonstrate that the accident would have been avoided by an adequate warning on the product negates a duty to warn. A plaintiff's failure to carry the burden of demonstrating that the absence of a warning was a producing cause of the accident is fatal, as a matter of law, to establish a duty to warn. Implicit in the duty to warn is the requirement that a plaintiff be ignorant of the particular dangers for which a warning would be required.
Finally, when the warning, even when placed on the product itself or the environment of its expected use, fails to prevent the type of accident that occurs, a plaintiff has defaulted in satisfying the burden of proving causation. A warning that fails to prevent the type of accident that occurs does not necessarily establish producing cause of the injury to the user.
Again, the newly released Restatement (Third) of Torts: Products Liability's continuing duty to warn has yet to be adopted by Texas courts. But, in at least one opinion of the sharply divided Texas Supreme Court in Uniroyal Goodrich Tire Co. v. Martinez, 41 Tx. Sup.Ct. J. 1047 (July 3, 1998) suggests that the Court may choose to adopt changes in the newly released Restatement (Third). In Martinez, the issue was whether a product manufacturer may be strictly liable for failing to incorporate a safer alternative design even though the manufacturer provided a conspicuous warning which, if followed, would have prevented the injury. Martinez was severely injured when a 16" tire he was mounting on a 16.5" rim exploded. The Supreme Court relying on the newly released Restatement (Third) of Torts: Products Liability, held that the presence of a warning is only one factor in determining whether a product is defectively designed. Because there was evidence that a reasonable alternative design would have prevented this accident, the Court upheld the jury's finding of product defect. Interestingly, Justice Hecht, dissenting, concluded that Goodrich's warning label negated product defect as a matter of law.
A District of Columbia Court of Appeals also followed Comment 1. In Rogers v. Ingersoll- Rand Co., 144 F.3d 841 (D.C. Cir. 1998), a road crew worker was injured by a milling machine as it was backing up. As the driver backed up the milling machine, its alarm failed to sound and the driver didn't see a co-worker in his blind spot. The machine backed over the left foot and leg of the co-worker, crushing her pelvis and causing damage to internal organs. The equipment manufacturer had warned users in its operation and maintenance manual that they should stay 10 feet away from the rear of the machine when it was operating, verify that the back-up alarm worked, and check the area for people. In addition, the machine had a sign that told people to stay 10 feet away. The court found that an adequate warning by itself does not "immunize a manufacturer from any liability caused by its defectively designed product,"and stated that the warning "cannot be elevated to the sole consideration in balancing whether the product was defective." The jury awarded the worker $16.7 million in damages.
Conclusion
If other courts adopt the lead of the Texas Supreme Court and the U. S. Court of Appeals for the District of Columbia Circuit, as in Martinez and Rogers, prominent warnings on products may no longer "protect" companies from liability for defects. Comment 1 in Section 2 of the Restatement (Third) states that warnings are not "a substitute for the provision of a reasonably safe design." Merely applying a warning on a product may not suffice if there is a reasonable and cost- effective way to design a safer product. This is a big change, since it will require not only manufacturers, but also courts, to consider safer, alternative designs, along with warnings. All of these things appear to be an early indicator that the recently adopted Third Restatement of Torts: Products Liability will be an important force in the development of products liability laws as we enter the next millennium.
The above article is intended to provide general information and should not be construed as legal advice or opinion. This article is not a substitute for legal counsel.
1 See, e.g., Philip H. Corboy, The Not-So-Quiet Revolution, Rebuilding Barriers to
Jury Trial in the Proposed Restatement (Third) of Torts; Products Liability, 61 Tenn. L. Rev. 1043, 1048-49.
2 Section 402A has been described as "the most frequently cited, and arguably the most influential, section of the Restatement (Second) of Torts." Michael J. Tdoke, Categorical Liability for Manifestly Unreasonable Designs: Why the Comment d Caveat Should be Removed from the Restatement (Third), 81 Cornell L. Rev. 1181, 1182 & n.4 (1996); see also Id. at 1190.
3 Injuries may be avoided either by decreasing the amount of a product produced and purchased (activity level) or by increasing the care with which it is designed or used (care level). See, e.g., Jon D. Hanson & Kyle D. Logue, The First-Party Insurance Externality: An Economic Justification for Enterprise Liability, 76 Cornell L. Rev. 129, 135, 137-38, 160-61 (1990).
4 These goals are enunciated in Escola v. Coca-Cola Bottling Co., 150 P.2d 436, 441 (Cal. 1944) (Traynor, J., concurring). Although implementation of section 402A has varied from jurisdiction to jurisdiction, the dangerous or "defective" nature of a product is generally determined by reference to consumers' expectations, rather than from the manufacturer's perspective.
5 See James A. Henderson, Jr. & Theodore Eisenberg, The Quiet Revolution In Products Liability: An Empirical Study of Legal Change, 37 UCLA L. Rev. 479, 542 (1990).
6 See Corboy, supra note 1, at 1045.
7 Although "tort reform" does not denote any particular direction for legal change, in recent years it has been primarily to refer to changes favorable to defendants. See, e.g., James A. Henderson, Jr., The Efficacy of Organic Tort Reform, 77 Cornell L. Rev. 596, 609 n.77 (1992) (book review).