Failure to warn

In June 1992, the American Law Institute undertook the task of drafting the Restatement (Third) of Torts "Products LiabiUty." Tentative Draft No. 2 takes the position that different HabiUty rules must apply for manufacturing defects and defects based on inadequate design or failure to warn ... 

Chicago, If, 25th-28th Oct. 1998, p.135-7. 6A1 PROTECTING AGAINST FAILURE-TO-WARN LAWSUITS Siegfried W A... 

Failure to warn patients not only subjects optometrists to claims for injuries suffered by patients, it can also widen liability to include third parties who may be injured by patients (e.g., in an automobile accident). Optometrists should routinely document the warnings given to patients rather than relying on patients memory after the fact. ... 

The state-of-the-art defense is asserted in strict liability (failure to warn) claims where the defendant alleges that he did not know, and could not reasonably have known, of the hazards of the product at the time of the plaintiff s exposure. A minority of courts have occasionally rejected this defense, reasoning that the imposition on manufacturers of the costs of... 

Garbutt BJ, Hofmann ME. 2003. Recent developments in pharmaceutical products liability law failure to warn, the learned intermediary defense, and other issues in the new millennium . Food Drug Law J. 58(2) 269-286. 

Rest.2d Torts, 402A, com. c, pp. 349-350.) The manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects thus, holding it liable for defects and failure to warn of harmful effects will provide an incentive to product safety. (Cronin v. J . Olson Corp. (1972) 8 Cal.3d 121, 129, 104 Cal. Rptr. 483,501 P.2d 1153 Beech Aircraft Corp. v. Superior Court (1976) 61 Cal. App. 3d 501, 522-523,132 Cal. Rptr, 541.) These considerations are particularly significant where medication is involved, for the consumer is virtually helpless to protect himself from serious, sometimes permanent, sometimes fatal, injuries caused by deleterious drugs. ... 

The Court noted that asbestosis is a cumultative disease, so that Borel s most recent exposures could have contributed to his overall condition the defendant s failure to warn, therefore, could have produced an actionable injury. ... 

In Pease v. Sinclair Refinery Co., a manufacturer of chemistry teachers demonstration kits offered one kit which contained sample tubes of different liquids, one of which was supposed to be kerosene. Unfortunately, since kerosene has the same physical appearance as water, the manufacturer substituted water for kerosene in the tube, perhaps in an effort to save costs. A severe injury occurred when the water was inadvertently mixed with a chemical which was explosive in the presence of water. The court held that the manufacturer should have foreseen that, in a chemistry classroom setting, a number of chemicals might come in contact with each other, most certainly with water. The court balanced the gravity of the possible harm - explosion, against what it viewed as the ease with which the manufacturer could have provided a warning. Compare the results in that case, however, with the Croteau v. Borden Co.f where a chemical manufacturer was held not liable to a laboratory technician for a failure to warn that if one of its chemicals was mixed with a wide variety of other chemicals an explosion might be produced. 

We agree with the Restatement A seller may be liable to the ultimate consumer or user for failure to give adequate warnings. The seller s warnings must be reasonably calculated to reach such persons and the presence of an intermediate party will not in itself relieve the seller of its duty. In general, of course, a manufacturer is not liable for miscarriages in the communication process that are not attributable to his failure to warn or the adequacy of the warning. 

Earlier diseussions of the priorities for hazard eontrols noted that the last priority involves proeedures, ineluding the use of personal proteetive equipment. Effeetive designs for safety minimize the need for simple or eomplex proeedures that require extensive training and skills. Legal issues diseussed earlier identified the need to provide warnings and instructions to prevent injuries. Failure to warn about hazards in products and processes creates a liability for a designer and/or manufacturer. 

As noted above, OSHA requires chemical manufacturers and importers to obtain or create an MSDS for each hazardous chemical they produce or import and maintain those MSDS in the workplace. OSHA also points out that "producers of chemicals may be subject to "failure to warn" suits that can have significant financial implications."... 

Use of defective equipment Equipment used improperly Proper equipment not used Adjusted equipment in operation Serviced equipment in operation Operating without proper authority Work carried out on live or unsafe equipment Wrong speed Improper loading/lifting Workers under the influence of alcohol/drugs Lack of attention/forgetfulness Failure to warn/secure Safety device/equipment made inoperable... 

Failure to warn coworkers or to secure equipment 1. Congested work areas... 

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