MANUFACTURER PRODUCT LIABILITY: DUTY TO WARN

by John Lee

Capitalism, it is said, is a system wherein man exploits man. And communism--is vice versa. --Daniel Bell

Citizens have the legal right to sue manufacturers of defective or dangerous products, after the citizen has suffered injury as a result of the manufacturer's negligence. Certainly people would prefer to have their good health--and normal career and lifestyle--rather than a financial legal settlement. However, financial security is important after a permanant injury adversely affected them and their family for the rest of their lives, perhaps preventing them from ever working again, or requiring them to pay for very expensive medical treatments and to suffer permanant pain. There is no need to feel sorry for these automotive manufacturers--many of their executives who decided to build the defective vehicles pay themselves millions of dollars a year in salaries and bonuses, and are protected by wealthy insurance companies. Lawsuits are expected from citizens who refused to be bluffed, and are considered simply the cost of doing business, and actually save the company money compared to building safer products.

The following are some typical jury instructions for product liability cases. These edited instructions give a reasonably good lay-explanation as to the competence and responsibility a manufacturer owes to its customers. The media does an effective job convincing citizens that they do not deserve their legal right to be reimbursed for their injuries, just as they advise citizens to turn down their civil rights. However, rest assured that those same executives would not hesitate to claim a few hundred thousand--or a few million--dollars that was sitting within their egotistical grasp. Nor would they falter in standing up for their own legal rights in a court of law. What they say is "best" for their fellow citizens, and what they do for themselves, are two entirely different things.

• Doctrine of Strict Liability
  The strict liability doctrine, also known as Section 402A of Restatement of Torts . . . is sometimes called "liability without negligence." It applies for protection of the public, even if the seller has exercised all possible care in the preparation and sale of his product, if in fact the product is defective in either manufacture or design. The purpose of this doctrine is to ensure that the costs of injuries from defective products are borne by the manufacturer, rather than by the injured persons who are powerless to protect themselves.
  
  
• Definition of Defect
  Members of the jury . . . the plaintiff must prove by a preponderance of the evidence that the product was defective. The word "defect" . . . refers not only to the condition of the product itself, but may include as well the failure to give directions for use or warnings as to the use of the product, in order to prevent it from being unsafe for its intended use. If directions or warnings or labels as to the use of the particular product are reasonably required in order to prevent the intended use of such product from becoming unsafe, the failure to give such warnings or directions, if any, renders the product defective as the word is used in these instructions, although the product was faultlessly made.
  
  
• Duty to Warn
  There is no duty by manufacturers to warn a user of a product of dangers which are fully known and appreciated by the user. However, the condition, although readily observable, may be one which only persons of special experience would realize to be dangerous. In such case, if the supplier or manufacturer, having such special experience, knows that the condition involves danger, and has no reason to believe that those who use it will have no special experience as will enable them to perceive the danger, he is required to inform them of the risk of which he himself knows or should know and of which he has no reason to suppose that they will realize.
  
  
• Duty to Warn
  Where the manufacturer or seller of a product has reason to anticipate a danger may result from particular use, then the manufacturer or seller is required to give adequate warning of the danger, and a product sold wihout such warning is in a defective condition.
  
  
• Duty to warn
  A manufacturer or seller of a product shall not be liable for an injury to person or propety caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.
  
  
• Defect--Inadequate Warnings
  Defect--Inadequate instructions for Use If a product reasonably requires instructions, directions or warnings in order to render the product safe for its intended use for its reasonably foreseeable uses, the failure to give such instructions, directions or warnings or the giving of inadequate instructions, directions or warnings is a defect under this law.
  
  
  
  
  Example of warning plackard. Must be visible to operator at all times.

• Definition of Dangerous Condition
  [I]f a product is defective and unreasonably dangerous at the time it is manufactured and this defect and unreasonable danger results in injury to the plaintiff, then the manufacturer is liable. A dangerous condition, as that term is used in these instructions, means a condition of a product that creates a substantial risk of injury when such product is used for its intended use or for any reasonably foreseeable use.
  
  
• State of the Art
  The defendants had a duty to manufacture their products in such a way that they would be as safe as reasonably possible under the state of the art as it existed at the time of such manufacture. If the defendants or any of them failed to do this, their product was defective and unreasnably dangerous to the user of it.
  
  
• Products Incapable of Being Made Safe
  Members of the jury, there are some products which in the state of human knowledge at the time of their manufacture and sale are incapable of being made safe for their intended and ordinary use. . . . [I]t is the manufacturer's duty to give such instructions, directions or warnings. That duty does not automatically terminate at the time the manufacturer sells the product. The manufacturer has a continuing duty to give such directions, instructions or warnings to purchasers and foreseeable users of their product as are necessary to warn the users of facts that are necessary to render the product safe for its intended use or reasonably foreseeable use.
  
  
• Assumption of Risk
  Members of the jury, the defendants in this case have said that the plaintiffs assumed the risk of injury in using this product. . . . In order for a plaintiff to have assumed such risk, he or she must have actual knowledge of the particular danger and must have appreciated the risk involved and the magnitude thereof and must have thereafter voluntarily assumed such risk. For a person to act voluntarily, he or she must have freedom of choice. The freedom of choice must come from circumstances that provide him or her a reasonable opportunity . . . to safely refuse to expose himself or herself to the danger in question. [I]ndustry standards are not conclusive as to ordinary care in design or manufacture, but rather, are admissible evidence for your consideration.
  
  
• Intervening Cause--Foreseeability
  In this case, one of the theories of the defense is that the plaintiff's injury was caused by an independent intervening cause for which the defendant is not liable. . . . [T]o be an independant intervening cause, it must be a cause which was not foreseeable by the defendant in this case. If it was foreseeable, then it would not be an independant intervening cause.
  
  

As anyone can see, automobile companies that do business in America are legally required to build safe vehicles and to provide their customers with instructions on how to safely drive them. Owners of used cars are protected by the same laws as new car customers. Currently, the news media, at the request of industry advertisers and their lap-dog politicians in Congress, are attempting to deny citizens their legal right to sue after an injury--so-called "tort reform." Or as Ralph Nader points out, tort "deform." Anyone with a question as to their legal status after a car wreck should consult with a civil attorney who has trial experience, perhaps one who specializes in products liability law.

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