Failure to Warn about Dangerous Products
Many products have obvious risks inherent in their design or use. Knives, for example, are sharp and when used improperly can cause significant injury. However, knives are also highly useful. Without them, life as we know it would be much more difficult. Banning knives from store shelves wouldnt work; we need them too much to go without them.
Similarly, holding knife manufacturers and retailers financially liable for every injury caused by the use of a knife would be unfair, and we dont want to force them out of the market. Fortunately, most people who use a knife understand the risks inherent in the product and are able take precautions against injury. But what about other useful products that pose less obvious dangers? Prescription drugs, for example, are a cornerstone of modern medical science; yet, while most consumers are aware that some drugs may cause adverse effects, most people do not have the knowledge or resources necessary to determine if using a particular drug will harm them.
Of course, we rely on the expertise of our doctors and pharmacists, but busy professionals can make mistakes; there are too many drugs, with too many possible complications. However, as with knives, taking all prescription drugs off the market is unworkable; we need them too much. Neither would it be feasible to hold each manufacturer liable for every injury caused by a drug. If we did that, no one would want to manufacture medicines because of the financial risks. To deal with the non-obvious risks in these types of products the law has created a requirement to warn. Manufacturers of all types of products are required to provide adequate warnings when they know, or should know, their products create non-obvious dangers to consumers.
To continue the drug example, pharmaceutical companies are required to provide warnings if they know, or should know, that a drug cannot be taken safely in combination with alcohol or other drugs. Many consumers drink alcohol and many take more than one prescription medication. They might not be aware that certain drugs work differently in the presence of alcohol or interact adversely with other drugs, sometimes with deadly consequences. With adequate warnings, consumers can be alerted to a potentially dangerous situation. When manufacturers fail to provide appropriate warnings, they may be held liable for resulting injuries. There are two broad types of liability in California with regard to product warnings; strict liability and liability grounded in negligence.
Strict Liability Failure to Warn
California law has long recognized an absolute duty on the part of manufacturers, distributors and sellers to provide products to consumers that are safe to use. If you make an electric drill, for example, it should not explode under ordinary use. If it does, youre held strictly liable. While this might at first seem unfair to manufacturers and resellers, the rationale is sound. As between consumers and product manufacturers, it is the manufacturers who are in the best position to do something about an unsafe product.
Consumers generally dont have the resources necessary to inspect and research every item they buy. In addition, manufacturers and retailers are the ones making a profit from the product, and they can use a portion of those profits to purchase insurance against injury. Therefore, the law reflects a public policy to hold manufacturers and retailers strictly liable for defects in the products they produce and distribute. Failure to provide adequate warnings is treated as a product defect in strict liability cases. Under this theory, liability for a failure to warn does not hinge on the reasonableness of the manufacturers omission.
This duty, however, is not absolute; there are a few exceptions. For example, the duty to warn of potential danger does not extend to an obvious risk or to misuse of a product, unless the misuse was predictable by the manufacturer. Furthermore, warnings need only be given for harm that is knowable at the time the product is manufactured or distributed. Although, if new information becomes available, a manufacturer is required to warn consumers that have already purchased a product about newly discovered risks. In order to prevail, injured consumers must be able to prove that a warning would have made a difference.
In other words, that the lack of a warning was a substantial factor in causing their injury. If, for example, a particular consumer would have used the product without regard to any warning, then a lack of warning is not a cause of the injury and the manufacturer may avoid liability. Finally, consumers who use a product in an unforeseeable or outrageous manner cannot claim that the manufacturers failure to warn was a substantial factor in causing the resulting injury.
Negligent Failure to Warn
California also recognizes a cause of action for negligent failure to warn. In a nutshell, negligence is a failure to act reasonably under the circumstances. The law generally requires everyone to behave reasonably and holds people liable for injuries caused by their unreasonable behavior. Shooting a gun into the air near a crowded park or leaving a small child unattended near a swimming pool are unreasonable things to do given the potential risks of harm.
Product manufacturers are held to this same negligence standard with regard to their products. For example, if a company that makes baby cribs discovers that one of their products has a tendency to collapse and injure an infant when set on an uneven surface, but neglects to post this warning on their product, they can be found liable for negligently failing to warn consumers of this known risk. Their behavior would be unreasonable under the circumstances.
A manufacturer, distributor or seller is liable under a negligence theory of failure to warn if they knew or reasonably should have known that their product was dangerous or was likely to be dangerous when used or misused in a reasonably foreseeable manner, where they knew or reasonably should have known that users would not realize the danger, they failed to adequately warn of the danger, a reasonable manufacturer under the same or similar circumstances would have warned of the danger, a person was harmed and their failure to warn was a substantial factor in causing the harm.
Application of the Failure to Warn Doctrine
Many of the products we use on a daily basis have non-obvious inherent risks that require warnings; but different products require different types of warnings. A prescription medication requires different warnings than a punch press or an electrical panel even though they all present unacceptable risks when used by an uninformed consumer. Warnings must be posted where a reasonable person would find them and the danger must be conveyed in a manner that is easily understood. Expert testimony is available to prove when warnings are required, the necessary content of the warnings and where they should be placed.
If you have been injured by a product with known inherent risks, where those risks were not obvious, and you used the product in a foreseeable manner, you may be able to recover for your injuries if the manufacturer, distributor or seller omitted a warning that might have prevented your particular injury. In fact, there are times when a failure to warn theory is the only route to making you whole for your injuries.
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