What is the “Heeding Presumption” in Products Liability Warnings Cases?
In a product liability case in which the plaintiff is asserting failure to warn claims, the plaintiff ultimately bears the burden of proving that a failure to warn actually caused the plaintiff’s injuries. Meeting that burden of proof is easier in states which recognize or follow the “heeding presumption” doctrine.
Generally speaking, under the “heeding presumption,” when a plaintiff introduces evidence that a particular warning was inadequate or unreasonable, a presumption arises that the plaintiff would have “heeded” an adequate or reasonable warning had one been provided. At that point, the burden shifts to the defendant to introduce evidence that the plaintiff would not have followed the purportedly adequate or reasonable warning.
Ironically, the heeding presumption was derived from language in Restatement (Second) of Torts §402A, comment J (1965) that dealt with the opposite situation. Comment J of the Restatement (Second) includes this language: “Where warning is given, the seller may reasonably assume that it will be read and heeded.” The logical conclusion of this statement is that it is reasonable for a product manufacturer supplying a warning to presume that a warning, when given, will be read and heeded by a user of the product. Such a result is unquestionably “defendant friendly” in that, at some level, any presumption that a warning will be “heeded” or followed makes a plaintiff’s burden of proof far more difficult. Put another way, if a jury must presume that a plaintiff will “heed” a warning (regardless of whether it was seen, read, and/or understood), it is far less likely that the jury tasked with analyzing whether an alleged “failure to warn” caused the plaintiff’s injuries will find for that plaintiff.
Unfortunately, some courts have turned that presumption 180 degrees and created a doctrine that is nowhere to be found in the Restatement (Second) – commonly known as the “heeding presumption.” Thus, instead of helping defendants as was reasonably contemplated by the drafters, the courts created a presumption that, where a warning is shown to be inadequate or unreasonable, plaintiff’s proposed alternative warning would have been read, understood and followed by the plaintiff . . . and, of course, the plaintiff would not have suffered an injury. It is axiomatic that, in jurisdictions which adopted and follow the heeding presumption, plaintiff’s burden of proof is lessened as it all but eliminates their burden to prove causation and, instead, shifts a burden to the defendant to demonstrate that the plaintiff would not have followed the proposed warning or instruction.
Notably, in 1998, when the Restatement (Second) of Torts was replaced by the Restatement (Third), the drafters eliminated any language regarding presumptions and shifting burdens of proof. Indeed, in the notes to comment I of the Restatement (Third), the drafters criticized comment J’s presumption language as “unfortunate” and concluded that it shouldn’t be followed. Consequently, if you find yourself defending a case in a jurisdiction which adopted/followed the heeding presumption based upon the language of the Restatement (Second), an argument can be made that the elimination of any reference to presumptions in the Restatement (Third) compels abandonment of the heeding presumption.
Accompanying this document is a table of jurisdictions and their respective approach to the heeding presumption. In the United States (including Puerto Rico and the District of Columbia), sixteen (16) states expressly recognize the heeding presumption, with some applying the doctrine in more limited circumstances than others. The remainder of the states have either expressly rejected it or they have not definitively addressed it.
Heeding Presumption – Difference Between “Use” Warnings and “Risk” Warnings
A “use warning” is one which addresses the risks if a user fails to use the product in a particular way. For example, if you use the product in a certain manner, you may suffer personal injury. (I.e. if you reach your hand into a meat grinder with the guard removed, you may suffer amputation injury to your hand).
On the other hand, “risk warnings” involve an inherent risk of a particular product (I.e. if you take a particular prescription medication, there is an inherent risk of a particular side effect). In such situations, the warning is provided so that a user can make an informed decision about whether that risk outweighs the benefits that might be gained from using the product.
The difference between the two types of warnings is discussed in Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 814 (5th Cir. 1992).
If you are dealing with a case involving a product with an inherent risk and defending the “risk warning,” the only way to avoid the risk is not to use the product.
So . . . what happens if you are in a jurisdiction which follows the heeding presumption when a “risk warning” is involved? Because the only way to avoid an inherent risk is to not use/take the product, “heeding” that instruction essentially means that the product would not have been used/taken. Application of the “heeding presumption” in such situations opens the door to allowing plaintiff’s counsel to essentially contend that the product should not have been sold or used. If a jury was to conclude that a plaintiff would have heeded the warning and not accepted the inherent risk, then the product should not have been sold/used or, alternatively, the manufacturers of such products are strictly liable for each and every injury caused by that product – regardless of the contents of the warning and regardless of the effort to allow a plaintiff to make an informed and educated decision. Following a “heeding presumption” in such cases defies logic and common sense. We know, for example, that people continue to use products that have an inherent risk – alcohol, prescription drugs, tobacco products, etc.
For that reason, some courts treat the heeding presumption in cases involving inherent risks and “risk warnings” differently than cases involving “use warnings.” For an example, there are courts which interpret the “risk warnings” in prescription medicine cases as meaning only that the prescribing physician would have factored the “risk warning” as information in an “adequate” warning into his or her decision making when determining what to prescribe. See Eck v. Parke, Davis & Co., 256 F.3d 1013, 1021 (10th Cir. 2001) (improper to view physician’s ‘heeding’ as an adequate warning to mean [s/he] would have given the warning) (applying Oklahoma law); In re Diet Drug Litigation, 895 A.2d 480, 490-91 (N.J. Super. Law Div. 2005).
The Importance of Choice of Law
While preparing the summary of jurisdictions and their respective approach to the heeding presumption, we found that a few instances in which there is conflict between a state court approach and the approach employed by federal courts in that state. For example, in Colorado, there is authority from 1986 which holds that Colorado does not recognize the heeding presumption. Uptain v. Huntington Lab, Inc. , 723 P.2d 1322, 1326 (Colo. 1986). However, in 1997, a federal court concluded that Colorado does follow the heeding presumption. Staley v. Bridgestone/Firestone, Inc. , 106 F.3d 1504, 1509 (10th Cir. 1997). It appears that a subsequent decision clarifies the approach that Colorado does not follow the heeding presumption. Farmland Mut. Ins. Co., v. Chief Industries, Inc., 170 P.3d 832, 839 (Colo. 2007). New York is another jurisdiction where there is state court authority denying application of the heeding presumption and federal courts concluding that he heeding presumption should be applied. In other jurisdictions (such as Iowa), there is federal court authority which concludes that the heeding presumption applies without specific guidance from that state’s highest court.
As a practice pointer, due to the variance in approaches to the heeding presumption in various jurisdictions, counsel should carefully take into consideration choice of law issues and whether arguments can be raised that the court should apply the law of a jurisdiction which refuses to apply the heeding presumption as opposed to a jurisdiction which lessens the plaintiff’s burden of proof.
How to Defend Warnings Claims in Jurisdictions Following the Heeding Presumption
If you find yourself in jurisdiction which follows the heeding presumption, it is possible for a manufacturing defendant to rebut the presumption with evidence that the plaintiff would not have heeded the warning. Defendant’s counsel is ultimately tasked with the responsibility of demonstrating that a plaintiff is not the type of person who typically reads and/or follows warnings or instructions. Eliciting testimony from the plaintiff and/or plaintiff’s co-workers/supervisor regarding plaintiff’s customs and practices with warnings is one way for defense counsel to rebut the presumption that an alternative warning would have prevented the injury. For example, if you can elicit admissions from the plaintiff that he/she never saw or read the allegedly deficient warning, a strong argument can be made that plaintiff’s proposed alternative warning would not have been “heeded” or followed. Trying to elicit custom and practice testimony regarding a plaintiff’s approach to warnings with products that he/she owns and uses on a daily basis is another approach (I.e. asking questions about whether the plaintiff has read his vehicle’s owner’s manual cover to cover or whether the plaintiff can identify all of the warning labels/safety tags in his/her vehicle). Also, eliciting testimony to support the conclusion that a plaintiff was aware of the specific risk but, regardless of that risk, proceeded voluntarily to encounter the risk and subjected himself/herself to harm. Sharpe v. Bestop Inc, 713 A.2d 1079, 1085 (N.J.Super. 1998), a New Jersey case, provides a discussion how a defendant can try to rebut the heeding presumption.
Death cases present a particularly difficult scenario. Where a plaintiff was killed in the incident, the heeding presumption essentially substitutes as evidence. As a practical matter, obtaining evidence regarding a plaintiff’s custom and practice with warnings/labels or knowledge of a particular risk is far more difficult – if not impossible – if the plaintiff is no longer living. The defense is placed in the difficult position of trying to rebut the presumption that the decedent would have followed an alternative warning without having the ability to question the plaintiff regarding his/her knowledge of the danger or his/her attitude towards warnings or custom and practice of reviewing/following warnings.
Post-Sale Duty to Warn Claims – Retailer Claims – Warning Beyond the Label & Post-Sale Duty to Warn
Retailers receive inconsistent instructions within and across jurisdictions as to whether they have a duty to warn consumers, when such a duty arises, and what form the warning should take. In some industries, the practical response to this predicament is to sway on the side of caution and issue direct warnings to consumers. Tracking industry trends, legal developments, and implementing changes accordingly does not guarantee protection against failure to warn claims, but it will likely reduce a retailer’s exposure to liability.
Must Retailers Provide Warnings to Consumers or Warn Beyond What is Provided in the Warning Labels?
For manufacturers, the duty to issue adequate warnings of foreseeable dangers is well-established. In some states, the retailer may be strictly liable for the manufacturer’s failure to adequately warn simply by virtue of being in the line of distribution. See, e.g., Bylsma v. Willey, 2017 UT 85, 416 P.3d 595; Durden v. Hydro Flame Corp., 1999 MT 186, 295 Mont. 318, 983 P.2d 943. Retailers may also have an independent duty to warn under a negligence theory. See, e.g., Love v. Weecoo (TM), 774 F. App’x 519, 521 (11th Cir. 2019) (Amazon, as seller of hoverboard, may have a duty to warn if it had actual or constructive knowledge of danger); Topliff v. Wal-Mart Stores E. LP, No. 6:04-CV-0297 (GHL), 2007 U.S. Dist. LEXIS 20533, at *123 (N.D.N.Y. Mar. 22, 2007) (citing Restatement (Second) of Torts, §§ 388, 401) (addressing Walmart’s potential liability for failing to warn of flammable properties on grounds it knew of the danger); Midgley v. S. S. Kresge Co., 55 Cal. App. 3d 67, 71, 127 Cal. Rptr. 217, 219 (1976) (noting telescope retailer’s potential liability for failing to warn of dangers in looking at the sun is “coextensive with that of the manufacturer of the product”); Hartzog v. United Corp., 59 V.I. 58, 88 (Super. Ct. 2011) (finding plant retailer could be held liable for failing to issue warning regarding the toxicity of a plant).
Likewise, rental companies may have a duty to warn customers beyond the warnings given by the manufacturer. See, e.g., Palla v. L M Sports, Inc., 388 F. Supp. 3d 1191, 1207 (E.D. Cal. 2019) (boat rental company had duty to warn of particular dangers of using boat for tubing); Erickson v. U-Haul Int’l, Inc., 274 Neb. 236, 246-47, 738 N.W.2d 453, 462-63 (2007) (lessor of truck may have duty to warn intended user depending on factual issues, including user’s knowledge of danger); Barsness v. Gen. Diesel & Equip. Co., 383 N.W.2d 840, 845-46 (N.D. 1986) (citing Restatement (Second) of Torts, § 388) (lessor of lift had duty to warn of dangers); Strong v. U-Haul Co., No. 1:03-cv-00383, 2007 U.S. Dist. LEXIS 7818, at *9 (S.D. Ohio Feb. 2, 2007) (rental company had duty to warn of particular towing dangers).
Recently, however, certain jurisdictions have carved out exceptions for retailers when contact with the product, warning, or consumer is tangential.[1] See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 82.003 (a seller is liable only when it designed, installed, altered or modified the product, exercised substantial control of the product or its warnings, made a harmful representation, knew about the defect, or when the manufacturer is insolvent); Groesbeck v. Bumbo Int’l Tr., 718 F. App’x 604, 612 (10th Cir. 2017) (Utah case law “speak[s] to one clear premise: a passive retailer cannot be held strictly liable for a product defect unless the record evidence discloses some basis to conclude that the retailer participated in the design, manufacture, engineering, testing, or assembly of the challenged product.”); Zamora v. Mobil Oil Corp., 104 Wash. 2d 199, 204, 704 P.2d 584, 588 (1985) (“The more the retailer [seller] is only a conduit for the product, the less likely [it] can be held in negligence. Conversely, the more the [seller] takes an active part in preparing the product for final use and takes the role of a manufacturer or assembler, the more likely [it] can be found liable in negligence”). While retailers that operate within these jurisdictions may escape liability, because the exceptions require intensive fact analysis, it is not a shoo-in.
Given the potential exposure to liability, retailers may want to consider issuing thorough warnings of foreseeable dangers to consumers directly, especially when the retailer has more than negligible contact with the consumer or product.
Must Retailers Give Warnings to Consumers Post-Sale?
In 1959, the Michigan Supreme Court found General Motors had a duty to issue a warning about a potential defect it discovered only after the vehicle in question was put on the market and sold to the plaintiff. Comstock v. General Motors Corp., 99 N.W.2d 627 (Mich. 1959). After that decision, several other courts applied a similar post-sale duty to manufacturers. See Rodriguez v. Besser Co., 565 P.2d 1315 (Ariz. Ct. App. 1977); Prokolkin v. General Motors Corp., 365 A.2d 1180 (Conn. 1976); Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985).
When the Restatement (Third) of Torts: Product Liability was introduced in 1997 and codified a post-sale duty to warn, it sparked considerable debate. The post-sale duty in the Restatement not only binds manufacturers to issue post-sale warnings, but any party “engaged in the business of selling or otherwise distributing products” when “a reasonable person in the seller’s positions would provide such a warning.” Third Restatement § 10. Notably, the duty does not require the danger to exist at the time the product is sold. Thus, under the Restatement, retailers and any party in the distribution line may have a timeless obligation to warn even if the product has long since left the store or market in general. And while the Restatement goes on to provide four factors for analyzing what a “reasonable person” might do, those factors are gauzy and generate more questions than answers.[2]
A few jurisdictions have rejected the post-sale duty outright. See DeSantis v. Frick, 745 A.2d 624, 632 n.7 (Pa. 1999); Palmer v. Volkswagen of America, 905 So. 2d 567 (Miss. Ct. App. 2003). A handful have adopted the Restatement’s post-sale duty as written. See, e.g., Lovick v. Wil-Rich, 588 N.W.2d 688, 691 (Iowa 1999); Jones v. Bowie Industries, Inc., 282 P.3d 316, 322-23. But most jurisdictions have either adapted the duty or have yet to address the issue. See Brown v. Crown Equip. Corp., 960 A.2d 1188, 1190 (Me. 2008) (recognizing the post-sale duty but rejecting the Restatement); Jablonski v. Ford Motor Co., 955 N.E.2d 1138, 1142 (Ill. 2011) (opening the door to a post-sale duty despite ample precedent rejecting it). A list of this breakdown follows:
Adopted Restatement 3d § 10
Alaska
Iowa
Massachusetts
Minnesota
Limited Post-Sale Duty to Warn (only for latent defects)
Arizona
Colorado
Hawaii
Illinois
Kansas
Michigan
New Mexico
Pennsylvania
South Carolina
Post-Sale Duty to Warn (not expressly limited to latent defects)
Connecticut
Georgia
Louisiana
Maryland
New Jersey
New York
North Carolina
North Dakota
Ohio
South Dakota
Washington
Wisconsin
Split/Uncertain
Kentucky
Nevada
Virginia
Adoption of Duty Predicted by Federal Court
New Hampshire
Utah
Virginia
No Post-Sale Duty (either expressly or no case law support for such duty)
Alabama
Arkansas
California
Delaware
Florida
Idaho
Indiana
Mississippi
Missouri
Montana
Nebraska
Oklahoma
Oregon
Rhode Island
Tennessee
Texas (exceptions)
Vermont
West Virginia
Wyoming
Failure to Warn – A Sampling of Summary Judgment Decisions for Defendants By Circuit
|
Case |
Facts |
Negligence or Strict |
Grounds for Summary Judgment |
|
|
1st Circuit (Puerto Rico) |
Santos-Rodríguez v. Seastar Sols., 858 F.3d 695, 696 (1st Cir. 2017)
|
Plaintiff was injured in a boating accident when a corroded rod end that was part of the boat’s steering mechanism failed. The steering system’s instruction manual informed owners that bi-annual inspection of the steering system is required and instructed them to check fittings, but did not include a specific warning about corrosion of the rod end. The boat’s owner, acquired it second-hand and did not do maintenance or read the manual. |
Strict |
The district court granted summary judgment on grounds plaintiff could not show causation on his failure-to-warn claim because there was no evidence that Viera or any person maintaining the boat had ever looked at the manual or the steering system’s warning labels. The First Circuit affirmed, noting even if the manual failed to provide an adequate warning, the claims fails absent evidence that someone read the manual. |
|
1st Circuit (Massachusetts) |
Geshke v. Crocs, Inc., 740 F.3d 74, 75-76 (1st Cir. 2014) |
Plaintiff’s daughter was injured when her Croc shoe got stuck in an escalator. She brought a claim for failure to warn on grounds the shoes should’ve warned of the danger of escalator entrapment. |
Negligence |
Affirming, the appeals court held plaintiff had produced no evidence beyond conjecture, that Crocs posed a danger. Absent evidence of a particular danger, the manufacturer has no duty to warn. |
|
1st Circuit (Puerto Rico) |
Prado Alvarez v. R.J. Reynolds Tobacco Co., 405 F.3d 36 (1st Cir. 2005) |
The decedent smoked cigarettes for 42 years and died of lung cancer. The family brought an action against the tobacco company, alleging that smoking the company’s cigarettes was a substantial factor in the decedent’s illness and death. The district court dismissed the failure to warn claim and granted summary judgment in favor of the company on the remaining claims. |
Both |
Affirming, the appeals court held that no reasonable jury could conclude that any member of the general public in Puerto Rico, including the decedent, lacked knowledge about the risks of smoking by the time the decedent started smoking in 1960. The family’s failure to show a lack of common knowledge about the risks of smoking precluded the claims for either a failure-to-warn or design defect. |
|
2nd Circuit (New York) |
Colon v. BIC USA, Inc., 199 F. Supp. 2d 53 (S.D.N.Y. 2001) |
A 6-year-old boy was playing with a disposable lighter and lit his shirt on fire, burning his torso and neck. Defendants brought evidence of extensive testing showing that children were rarely able to override the child safety feature, and plaintiffs failed to rebut that evidence. |
Both |
The court analyzed three possible versions of failure to warn. Claims dismissed under all three because 1) open and obvious danger; 2) failure to warn was not the proximate cause of the accident; and 3) child’s removal of safety feature was not a foreseeable intended or unintended use of the product of which manufacturer should have known. |
|
2nd Circuit (New York) |
Hutton v. Globe Hoist Co., 158 F. Supp. 2d 371 (S.D.N.Y. 2001) |
Plaintiffs sued for damages incurred when a car fell from a lift, crushing him. Defendants argued that 1) plaintiff’s expert was unqualified and 2) dangers from a car falling off a lift are obvious and can’t establish lack of warning was proximate cause. |
Not specified |
Court found: 1) expert’s theory was conjecture, which does not suffice to defeat summary judgment; 2) New York has exceptions to finding of proximate cause of obviousness and knowledgeable user and plaintiffs failed to show genuine issue of material fact as to either, therefore summary judgment on failure to warn was appropriate. |
|
2nd Circuit (New York) |
Mustafa v. Halkin Tool, Ltd., No. 00-CV-4851 (DGT), 2007 U.S. Dist. LEXIS 23096 (E.D.N.Y. Mar. 29, 2007) |
Plaintiff was a recent immigrant who neither spoke nor read English. He severed both hands in an accident involving a press break, which had warnings written in English only. Plaintiff claimed the press brake was unreasonably dangerous because it did not have adequate safeguards at the point of operation and because the operator was not warned against using a foot pedal without safeguards to protect the operator’s hands. Defendant argued plaintiff was aware of the danger and could have avoided it with reasonable care and it had no duty to warn of an open and obvious danger and the warnings were not the proximate cause of the accident. |
Both |
Plaintiff did not allege that the warning was inadequate because it was only in English. Court held that the fact that the warnings were in English, a language plaintiff didn’t understand, “severs the causal connection between the alleged inadequacy of the warning and the accident.” Court also rejected a third-party conveyance theory. |
|
3rd Circuit (Pennsylvania) |
Igwe v. Skaggs, 258 F. Supp. 3d 596 (W.D. Pa. 2017) |
Case involved a transmitter system meant to send a signal to traffic controller device requesting a change in the color of approaching traffic lights for use by law enforcement. Police officer drove his vehicle at a high rate of speed into an intersection and collided with another vehicle, killing the driver. Among other claims, plaintiff alleged manufacturer should have placed warning stickers or placards in emergency vehicles to warn of possibility of the device not changing lights in time. |
Strict |
Court found police policy warned officers device could be outrun, officer knew device could be outrun, other officers knew device could be outrun, and officer did not rely on device on the day of the incident. Court also found there was no requirement for a product seller to provide a myriad of similar worded warning when its issued warning, as understood by the buyer, addresses the alleged defect. The court “decline[d] to require redundant warnings when the undisputed evidence confirms the purchaser knew and adopted the warning in its policies.” |
|
3rd Circuit (New Jersey) |
Medley v. Freightliner LLC, No. 07-1580 (DRD), 2009 U.S. Dist. LEXIS 46047 (D.N.J. June 1, 2009) |
Experienced trucker uses unfamiliar vehicle, and falls as he gets down because he assumed the truck had a step in the same location as newer trucks. Plaintiffs claim both that truck is defective and there was a failure to warn. |
Not specified |
Court acknowledges that there were multiple ways to make the truck safer but found the risk of falling off the deck platform was open and obvious and the warning decal gave sufficient notice that the battery box was not to be used as a step. |
|
3rd Circuit (Pennsylvania) |
Hittle v. Scripto-Tokai Corp., 166 F. Supp. 2d 142 (M.D. Pa. 2001) |
Child start a fire with a lighter that kills his sister and injures his mother. Plaintiffs sue lighter corporation arguing it failed to warn them properly of the consequences of the lighter falling into the hands of an unsupervised child. |
Negligence |
Court held plaintiffs’ failure-to-warn claim lacked merit “for both of the following independent reasons: (1) the risk that children who operate the lighter may cause injuries is open and obvious; and (2) the warning to keep the lighter away from children was adequate as a matter of law.” |
|
4th Circuit (Virginia) |
Jeong v. Honda Motor Co., Civil Action No. 95-0024-A/R, 1998 U.S. Dist. LEXIS 8124 (W.D. Va. Apr. 22, 1998) |
Plaintiff was in a rollover event in a Honda Accord which caused the roof to collapse, resulting in permanent quadriplegia. Plaintiff asserted Honda is liable for failing to warn Accord users of the dangers of head and neck injury associated with a low speed rollover accident. Defendant argued the danger was open and obvious. |
Strict |
Court finds that plaintiff’s support for his claim is based in part on inadmissible expert testimony and that the possible dangers associated with a rollover accident are “readily apparent.” There is no duty to warn when a danger is open and obvious. |
|
5th Circuit (Texas) |
Isaac v. C. R. Bard, No. A-19-CV-895-LY, 2021 U.S. Dist. LEXIS 59224 (W.D. Tex. Mar. 29, 2021) |
Plaintiff was surgically implanted with inferior vena cava filter following a serious automobile accident. After the filter was implanted, plaintiff alleges she suffered a cascade of “filter failures.” Plaintiff alleges the manufacturer failed to warn patients and physicians about this danger. |
Both |
Court finds plaintiff failed to provide any evidence that her implanting physician “would have read or encountered the adequate warning, and that the adequate warning would have altered her physician’s treatment decision.” Therefore, inadequacy in the product’s warning cannot be the producing cause of the injuries. |
|
5th Circuit (Louisiana) |
Perez v. Brown Mfg., CIVIL ACTION NO. 98-478 SECTION “K”, 1999 U.S. Dist. LEXIS 11479 (E.D. La. July 21, 1999) |
Plaintiff was an employee at a tree cutting company that use a tree cutting machine, provided minimal training, and never provided a full copy of the machine manual to plaintiff or his supervisor. The machine’s sticker’s recommended people stay several hundred feet away from the cutter. Plaintiff was hit in the head by a piece of wood thrown from the machine and suffered severe closed head injuries. |
Negligence |
Court found manufacturer’s warnings “more than adequate.” The warnings were provided to both the purchaser of the product and to the potential users of the product. There was no feasible method by which the manufacturer could have warned bystanders such as the plaintiff of the dangerous nature of its product. Once the manufacturer warned the employer of the dangers of using the tree cutter and provided a detailed manual and decals for the machine, the duty to warn employees shifted to the employer. |
|
6th Circuit (Ohio) |
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 45 F. Supp. 3d 706 (N.D. Ohio 2014) |
Plaintiffs alleged defendant had a duty to warn potential purchasers that the washing machines carried with them greater risks of foul odors and health hazards than an ordinary consumer would expect when using the machines in their intended or reasonably-foreseeable manner. |
Negligence |
Court concludes that the alleged defect (propensity for mold growth) is not a safety defect and that a failure-to-warn claim is cognizable in Ohio only if the allegedly inadequate warning addresses a safety defect. |
|
6th Circuit (Ohio) |
Mohney v. USA Hockey, Inc., 300 F. Supp. 2d 556 (N.D. Ohio 2004) |
17-year-old fractured his neck when he crashed into a wall while playing hockey, causing him to become a quadriplegic. Helmet manufacturer argued there were adequate warnings and no proximate cause. |
Both |
Plaintiff admitted he’d never read the warning, despite it being in plain view to read. He further testified he would not have read the instructions or the warnings for the face mask before putting it onto the helmet. Court notes that presumption is that adequate warning will be heeded, but even assuming that warnings were inadequate, the plaintiff admitted he did not read the warnings. As such, warnings were not proximate cause of injury. |
|
7th Circuit (Indiana) |
Clark v. Oshkosh Truck Corp., No. 1:07-cv-0131-LJM-JMS, 2008 U.S. Dist. LEXIS 52829 (S.D. Ind. July 10, 2008) |
Plaintiff slipped on the bed of a rollback truck and caught his leg as he fell off. Plaintiff sued for failure to warn of the dangers associated with walking on the rollback bed. He alleged that open and obvious defense didn’t apply because although he knew the bed was slick, he didn’t expect to get his foot caught. |
The court concluded defendant did not have a duty to warn of dangers associated with rollback bed’s open and obvious conditions, and plaintiff was aware of the slick nature of the bed. Court further concluded that the specific mechanics of the fall (caught foot) are irrelevant because of the plainly visible characteristics of the bed, which plaintiff recognized. Summary judgment is denied on plaintiff’s failure to instruct theory as there are genuine material facts as to the adequacy of defendant’s instructions for operation of the truck. |
|
|
7th Circuit (Illinois) |
Walker v. Macy’s Merch. Grp., Inc., 288 F. Supp. 3d 840 (N.D. Ill. 2017) |
Plaintiff’s jacket caught fire while cooking and fire spread to pajamas she was wearing under jacket. Plaintiff sued manufacturers and sellers of clothing, arguing they failed to warn as to the garments’ flammability. |
Strict |
Defendants argue no duty to warn of obvious danger such as fire, and court agrees summary judgment should be granted. Plaintiff argues “heeding presumption” for failure-to-warn claims, in other words, because defendant provided no warnings on its product, the court must presume that Plaintiff would have heeded any warning. However, court notes this presumption in Illinois is limited to defective pharmaceuticals, comprising the learned intermediary exception, and thus does not exist here. Even if “heeding presumption” been applicable, plaintiff didn’t provide evidence of specific additional or alternative warnings. |
|
8th Circuit (Missouri) |
Menz v. New Holland N. Am., Inc., 460 F. Supp. 2d 1050 (E.D. Mo. 2006) |
Plaintiff was injured in tractor rollover accident. Plaintiff’s expert testified no warnings would have altered plaintiff’s conduct. |
Both |
Court held that in cases involving technical and complex machinery whose properties are outside the common knowledge or experience of a jury, a failure to warn claim requires expert testimony that additional or other warning might have altered the behavior of the plaintiff. Plaintiff did not offer such evidence; therefore, summary judgment was proper. |
|
8th Circuit (North Dakota) |
Tosseth v. Remington Arms Co., LLC, 483 F. Supp. 3d 659 (D.N.D. 2020) |
While attempting to remove a cartridge from a gun at a shooting range, gun father is holding discharges and kills 14-year-old daughter. Plaintiff asserts failure to warn/instruct. Father demonstrates knowledge of mishandling firearms, danger of pointing muzzle at people, and general gun expertise. Defendant argues they provide a wide array of warning and instructions. |
Both |
Plaintiff admits he never read the instruction manual other than disassembling sections. Plaintiff failed to offer proof of what made the warnings inadequate so that the firearm was unreasonably dangerous to the ordinary user or that the warnings provided fell below the standard of reasonable care. Plaintiff’s expert did not offer support for contention that warnings were inadequate. Court held that without that evidence, summary judgment for defendant is appropriate. |
|
8th Circuit (Iowa) |
Rowson v. Kawasaki Heavy Indus., 866 F. Supp. 1221 (N.D. Iowa 1994) |
Plaintiff is injured in ATV rollover accident. He admits he did not read any of the warnings printed on the ATV prior to riding. After defendant moves for summary judgment, plaintiff submits an affidavit stating he did partially read some of them or didn’t read the warnings because they were not clearly visible. |
Court find affidavit is admissible and denies summary judgment on grounds failure to read the warning would not bar the claim as a matter of law because plaintiffs pleaded a case that falls withing a recognized exception by alleging the warnings are inadequate in presentation and location. |
|
|
9th Circuit (California) |
Rodman v. Otsuka Am. Pharm., Inc., No. 18-cv-03732-WHO, 2020 U.S. Dist. LEXIS 129644 (N.D. Cal. July 22, 2020) |
Plaintiff alleges antipsychotic medication caused Tardive Dyskinesia. |
Court excluded Plaintiff’s opinion on label inadequacy. Plaintiff’s lack of expert testimony, her doctor’s testimony that he was aware of the risks and a different warning label would not have impacted his prescribing decision, and the doctor’s testimony that he knew to monitor for TD were fatal to her failure to warn claim. |
|
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9th Circuit (California) |
M.G. v. Bodum USA, Inc., No. 19-cv-01069-JCS, 2021 U.S. Dist. LEXIS 34774 (N.D. Cal. Feb. 24, 2021) |
10-year-old child was injured when the glass beaker for a French press coffee maker fractured. Manufacturer included a warning to keep children away and not allow them to use the coffee maker in the instructions. |
Strict |
Court found that plaintiffs admitted to throwing away the instructions without reading them, so no matter what the warnings were, plaintiffs wouldn’t have seen them, and plaintiffs admitted to not reading the warnings printed on the glass beaker; therefore, they could not establish causation on failure to warn and summary judgment was appropriate. |
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10th Circuit (Oklahoma) |
Britton v. Electrolux Home Prods., No. CIV-05-1322-F, 2006 U.S. Dist. LEXIS 74945 (W.D. Okla. Oct. 13, 2006) |
Plaintiff’s 4-year-old son was backed over with a lawn mower resulting in the amputation below the knee of one leg. Oklahoma recognizes the heeding presumption; however, defendants argued that operator’s failure to read any of the warnings rebutted that presumption. |
Strict |
Court found that defendants successfully rebutted the heeding presumption with undisputed evidence that the mower’s operator did not read any of the warnings or safety instruction in the owner’s manual or any of the warnings on the tractor itself. With the presumption gone, the court found that plaintiffs failed to present evidence for the jury to conclude that the alleged inadequate warnings caused the injuries. Failing to establish causation is fatal to the failure to warn claim. |
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11th Circuit (Alabama) |
Borum v. Werner Co., No. 5:11-cv-997-AKK, 2012 U.S. Dist. LEXIS 78545 (N.D. Ala. June 6, 2012) |
Plaintiff fell off a ladder and suffered serious bodily injury. Defendant argued there were extensive warnings on the ladder, providing sufficient notice. |
Negligence |
Court found plaintiff failed to offer sufficient evidence that defendant breached a duty. The ladder’s safety instructions provided adequate warning regarding the plaintiff’s alleged dangerous propensities. |
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11th Circuit (Court of Appeals) (originally Wisconsin) |
Stupak v. Hoffman-La Roche, Inc., 326 F. App’x 553 (11th Cir. 2009) |
Mother alleged 17-year-old son committed suicide without having any premonitory symptoms while taking Accutane. Although defendants both knew of and warned of the risk of suicide, plaintiff claims that they had knowledge of patients without premonitory signs of depression preceding the deaths. |
Both |
Defendant was only negligent or strictly liable for failure to warn if it had a duty to warn, and only had a duty to warn of dangers of which is knew or should have known. Plaintiff only makes conclusory allegations that defendant should have know without specific supporting facts. Without that evidence, plaintiff cannot maintain a claim that defendant had a duty to provide a separate warning of the danger of suicide without premonitory symptoms. Because duty is a necessary element of both negligence and strict liability, summary judgment for defendant is upheld. |
[1] Similarly, courts have dismissed defendants from product liability claims by focusing on the meaning of “retailer” or “seller.” See, e.g., Musser v. Vilsmeier Auction Co., 522 Pa. 367, 376, 562 A.2d 279, 283 (1989) (finding an auctioneer was not a seller); Stiner v. Amazon.com Inc., 2019-Ohio-586, ¶ 34, 120 N.E.3d 885, 894 (Ct. App.) (affirming finding by trial court that a third-party vendor was not a seller).
[2] A reasonable person in the seller’s position would provide a warning after the time of sale if: (1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; (2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; (3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and (4) the risk of harm is sufficiently great to justify the burden of providing a warning.