Failure to Warn: When a Product Needed a Warning and Did Not Have One

Some products are dangerous by nature. A chemical. A power tool. A device that stores energy. The law does not say those products cannot be sold. It does say the people who use them must be told how to do it safely.

A product with no warning, a hidden warning, or instructions that leave out the real danger can be a defective product.

What the jury is told: strict liability

Instruction 403.8 sets the test:

"A product is defective when the foreseeable risks of harm from the product could have been reduced or avoided by providing reasonable instructions or warnings, and the failure to provide those instructions or warnings makes the product unreasonably dangerous." Fla. Std. Jury Instr. (Civ.) 403.8.

In plain English, the jury looks at three things:

1. Was the risk of harm foreseeable?
2. Would reasonable instructions or warnings have reduced or avoided it?
3. Without them, was the product unreasonably dangerous?

What the jury is told: negligence

A separate claim asks whether the company was careless in not warning. Instruction 403.10 says:

"Reasonable care on the part of (defendant) requires that (defendant) give appropriate warning(s) about particular risks of (the product) which (defendant) knew or should have known are involved in the reasonably foreseeable use(s) of the product." Fla. Std. Jury Instr. (Civ.) 403.10.

This version looks at what the company knew or should have known. Company testing, complaints, injury reports, and internal emails often matter here.

Why a warning has to be good, not just present

A tiny sticker on the back of a product is not the same as a clear warning. A jury can ask whether the warning was easy to see, easy to understand, and specific about the real risk. It can also ask whether the instructions told people how to use the product safely.

Some of the questions that come up:

• Where was the warning placed?
• Was it in plain words, and in a language the user could read?
• Did it describe the actual danger and how to avoid it?
• Did the company know about earlier injuries?

Warnings after the sale

Sometimes the danger is learned after the product is sold. The committee notes say this about it:

"Under certain circumstances, a manufacturer has a duty to warn about particular risks of a product even after the product has left the manufacturer's possession, and has been sold or transferred to a consumer or end-user." Fla. Std. Jury Instr. (Civ.) 403.10, Note on Use 2.

The note adds that a special instruction may be needed in those cases. Recalls and safety notices are part of this story. See recalls and federal agencies.

The "learned intermediary" defense

Some products reach the user through a professional. A prescription medicine comes through a doctor. A medical device comes through a surgeon. The defense may say it warned the professional and could rely on that person to pass the warning along.

Instruction 403.18(c) frames it this way:

"whether (the defendant) provided reasonable instructions or warnings to (intermediary) and reasonably relied upon [it] [him] [her] to provide reasonable instructions or warnings to the user of (the product)." Fla. Std. Jury Instr. (Civ.) 403.18(c).

The jury may consider "the nature and significance of the risk involved in using the product, the likelihood that (intermediary) would convey the instructions or warnings to the user of (the product), and the feasibility and effectiveness of (defendant) directly warning the user."

What you need to show

• The product carried a foreseeable risk of harm.
• A reasonable warning or instruction was missing or inadequate.
• That failure made the product unreasonably dangerous (strict liability), or the company knew or should have known and did not give an appropriate warning (negligence).
• The failure was a legal cause of your injury.

Common defense arguments

• The warning was there. You did not read it.
• The danger was obvious, so no warning was needed.
• The company warned a professional who passed it on (learned intermediary).
• You used the product in a way no warning could have prevented.

See defenses.

What to do now

1. Get medical care.
2. Keep the product, the packaging, the instructions, and every label. Do not throw away the manual.
3. Photograph the warnings exactly as they appear. Take close-ups.
4. Write down what you were told, and by whom, at the time of purchase or use.
5. Do not return the product to the company.
6. Call a lawyer before you give a statement.

Talk to us

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This page is general information, not legal advice. Every case is different.