Updating the duty to warn

Traditionally, manufacturing and design defects served as the driving
force behind strict product-liability lawsuits. However, design or manufacturing
flaws have been reduced substantially in recent years. Computer-aided design and
other modern tools have enabled manufacturers to design and manufacture their
products with improved precision and reliability.

As the basis for product liability declines, the breach of the duty to warn has grown. Under the "failure to warn" theory, the best possible automobile or lawn mower might still be held to be legally defective if the manufacturer fails to warn the user of residual hazards, even if there is nothing else wrong with it. In this way, the courts apply strict liability principles without having to condemn the product or concern themselves with its composition, manufacture, or design.

The duty-to-warn theory. The basis for the theory is that if the user's lack of information made the product unsafe, a warning can remedy the problem. Arguably then, most products which can cause injury can be made less hazardous with more effective warnings, which leaves the manufacturers to decide when a warning is adequate.

Consider the design procedure. First, engineers must design the product to ensure that is it safe. Typically, engineers select designs to eliminate hazards where possible and specify guard devices to protect against hazards when necessary. When hazards cannot be completely isolated by these means, engineers use warnings and instructions.

For example, although you may design a saw so that the blade cannot touch the user's hands in normal use, if you expect the saw to cut something, it cannot be completely covered. To separate the user from the blade, you could design a guard, but the user would still have to move it before starting up the saw. A warning would be necessary.

The duty to warn requires that the warning be adequate, that it convey the nature and extent of the danger to a reasonably prudent person. An adequate warning must impress upon such a person the danger involved with the product's foreseeable uses and misuses and suggest how to avoid that danger.

Adequate warning. Therefore, an adequate warning alerts the consumer to the severity of the condition he faces, clearly states the nature of the hazard and its consequences, tells how to avoid the hazard, and stands prominently visible at the point of use and/or at other decision points.

The real question is in determining when a warning is needed. Ask the National Safety Council, ANSI, OSHA, ASME, and the Federal Consumer Product Safety Division for further information on warnings.

Imposing upon manufacturers a continuing duty to warn reflects a continuing refinement of strict product liability law. One may argue that imposing a continuing duty to warn, without regard to the reasonableness of locating the product or the product's useful life, may make the manufacturer an insurer of its product, contrary to the goals of strict liability. Nevertheless, the only effective way to avoid such liability is to evaluate the warning.

Together, your product design team, your marketing staff, and your legal firm must discuss these issues.

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