In products liability, there is a principle known as “failure to warn”. The core of all products liability law is that products must be reasonably safe for their intended purpose. Products liability law sometimes focuses on the condition of the product itself, and asks “was the product designed and/or manufactured in a way that it is reasonably safe for its intended purpose?”

Some useful products, however, contain certain inherent dangers that cannot be eliminated without making the product less functional. For example, gasoline is extremely flammable, which creates some inherent risk from its use. However, if gasoline were not combustible, it would not be able to power an engine.

Many millions of consumers are injured every year when the products that they are using failed to provide warnings of the dangers that are associated with the products. The warning labels on the product itself and the owners manual must be clear, concise, and explain all the possible dangers and risks that can be associated by the product.

Who Can Be Liable for a Failure to Warn Claim?

A manufacturer, distributor, or a retailer can be held strictly liable for a failure to provide adequate warnings for a product that they sell if a consumer suffers a injury as a result of the lack of warnings on the products. Failure to warn is a strict liability lawsuit and even a defendant who did not make or manufacturer the product can be held liable for selling or producing the defective product even if their company or business did not act negligently. 

What Factors Are Involved in a “Failure To Warn” Lawsuit?

“Failure to warn” lawsuits follow the basic principles of any personal injury suit. The plaintiffs, the party bringing the case to court, must show that the manufacturers knew about the danger posed by the product, had a duty to warn consumers about the danger and were negligent about their duty in such a manner that the consumer was hurt by the product. The plaintiff must be able to show that each one of these points is true.

The defendant need only disprove one of these points to defeat the suit:

1) Defendant Knew About the Danger of the Product

The defendant can claim ignorance about the danger, especially if the plaintiff used the product in such a way that is not obvious to any reasonable person. Automobile producers cannot reasonably be expected to know that a person can use a car as a weapon against a former spouse.

However, it can be reasonable to assume that infants or young children may attempt to consume small items. Manufacturers can be reasonably expected to be aware of design flaws, breakdowns and/or common mis-usage and to warn about the danger.

2) The Defendant Has Duty to Warn of the Danger

If a manufacturer does know about the risks inherent in the use of a product, and a this failure to warn causes injury, the manufacturer may be liable for whatever injuries result. However, to create liability, the person using the product must show that he or she would have followed the warning, if one had existed.

This duty to warn does not apply to dangers that are obvious to the ordinary consumer. For example, kitchen knives are very sharp, and they must be very sharp to perform their intended function properly. This fact means that there is some inherent risk of harm in the use of kitchen knives. However, every ordinary consumer should be aware of this risk, and take steps to minimize it. A manufacturer of kitchen knives would probably not be liable for failure to warn, even if the injured consumer was truly unaware of the fact that they are sharp.

There may also be a duty to warn against the dangers of the product when used for something other than its ordinary purpose, if such use is foreseeable. For example, it is fairly common for people to use chairs as step stools, even though that is not what chairs are designed for. A manufacturer of chairs should know this, and should probably warn consumers that this is not their intended use, and that using them in this manner creates a significant risk of injury.

3) Defendant Was Negligent With Regards to Their Duty to Warn

It must also be shown that the producers of the product were not only knowledgeable and responsible for any hidden dangers, but that the producers failed to take proper action in warning about the danger. Obviously if there is no warning then the defendant has lost this point. However, even having a warning may not be enough.  The warning must be visible, informative and useful to the consumer. A good warning should have at least the following (if not more):

  • A word indicating a possible risk, such as “DANGER!”, “WARNING” OR “CAUTION”.
  • The warning should identify the nature of the risk, such as possible fire or poison.
  • Inform about the consequences of heeding the warning, such as loss of eyesight, risk to pregnancy or death.
  • Explain how to avoid the danger
  • Use of pictures is highly encouraged, as not every consumer may be literate in the language used by the manufacturer.

4) Plaintiff Was Injured as a Result of the Inadequate Warnings

This part is not only true of “failure to warn” suits or personal injury cases, but all court hearings in general. The plaintiff must show injury and that the injury was caused by the lack of a warning from the makers of the product. Note that the “injury” does not refer to the physical or permanent; wage loss from injury, hospital bills and damage to other property can be counted for collection by the plaintiff.

However, the injury must be caused by the lack of a product warning. Manufacturers cannot be held responsible if the injury was caused by prior medical problems from past accidents or work-related injury.  

5) Warning Was Not Visible

In order for the defendant to warn the users of the product about the dangers of the product, the defendant must place the warning in places that could be read by the users of the product. The warnings cannot be buried somewhere in the manual. The warnings must be understandable to the average user of the product in a visible place that an expected user of the product would be able to see the product. This means that some products that have lots of dangers are required to have warning labels directly on the product itself.

Do I Need An Attorney for a Failure To Warn Lawsuit?

Although these cases can sound simple, there are many hidden legal pitfalls. An experienced personal injury lawyer can help you win a lawsuit involving the failure to warn about product risks.