Duty to Warn: Producer Care and Consumer Choice - April 10

Question 1

When is a warning required? (Feldman)

Answer 1

Warning is required “where the defective condition of the product makes it unreasonably dangerous to the user or consumer.”

Question 2

What does unreasonably dangerous mean? (Feldman)

Answer 2

“unreasonably dangerous” is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community
as to its characteristics.”

Question 3

When must sellers warn? (Feldman)

Answer 3

sellers must warn if they have “knowledge, or by the application of reasonable, developed human skill and foresight, should have knowledge, of … the danger….”

Question 4

What may the seller reasonably assume when they give a warning? (Feldman)

Answer 4

“[w]here warning is given, the seller may reasonably assume that it will be read and heeded….”

Question 5

If a product bears a warning, is it defective or unreasonably dangerous? (Feldman)

Answer 5

“a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

Question 6

When is warning liability appropriate for unreasonably dangerous products? (Feldman)

Answer 6

For unreasonably dangerous products, warning liability is appropriate when:

(1) the greater than expected risks of the product serve some important consumer interest or

(2) users precautions are the best way to minimize the
risk at issue.

Question 7

What purposes do warnings for unreasonably dangerous products serve? (Feldman)

Answer 7

The warnings here serve two purposes: they enable informed consumer choice and they alert users to the need for special precautions.

Question 8

What is an unavoidably unsafe product? (Feldman)

Answer 8

“There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use”;

Question 9

Do we know about the risks of unavoidably unsafe products? (Feldman)

Answer 9

Yes. Risks of these products are “known but apparently reasonable.”

Question 10

What does warning liability do for unavoidably unsafe products? (Feldman)

Answer 10

For unavoidably unsafe products, warning liability enables informed consumer choice whereas imposing defect liability will not lead to a safer product and harm to the user, even if it is severe, is less than the harm the user will otherwise suffer.

Question 11

What is the test to determine when a warning is required? (Feldman)

Answer 11

“A product … is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor … and the omission of the instructions or warnings renders the product not reasonably safe.”

Question 12

Is there a duty to warn about open and obvious risks? (Feldman)

Answer 12

There is no duty to warn about “open and obvious” risks because the product itself does the warning (Belling, 1029).

Question 13

What is the extent of the duty to warn? (Feldman)

Answer 13

MacDonald explains that the duty extends to all “persons who it is foreseeable will come into contact with and consequently be endangered by that product.” (1033)

Question 14

What is the learned intermediary rule? (Feldman)

Answer 14

In most prescription drug cases, the manufacturer may be relieved of the duty to warn the user directly “because of a justified reliance upon … a middleman” (1032)—that is, a prescribing physician.

Question 15

What is the standard for assessing the adequacy of a warning? (Feldman)

Answer 15

“A reasonable warning not
only conveys a fair indication of the nature of the dangers involved, but also warns
with the degree of intensity demanded by the nature of the risk.”

Question 16

When would a warning be found to be unreasonable? (Feldman)

Answer 16

“A warning may be
found to be unreasonable in that it was unduly delayed, reluctant in tone or lacking in
a sense of urgency.” (1034)

Question 17

What question do we ask when we assess warning liability from the manufacturer’s perspective? (Feldman)

Answer 17

“Was this a reasonable attempt to convey the nonobvious risks of the product?”

Question 18

What question do we ask when we assess warning liability from the user’s perspective? (Feldman)

Answer 18

“Did this warning ‘make the
nature of the risk reasonably comprehensible to the average consumer?’” (1034)

Question 19

What is a unilateral precaution case? (Feldman)

Answer 19

Only the manufacturer can make the product safer (the
consumer can only decide whether or not to use the product).

Question 20

What is a bilateral precaution case? (Feldman)

Answer 20

A combination of manufacturer and user precautions – [1] the manufacturer warns and instructs and [2] the user acts on the manufacturer’s
instructions – is required to make the product reasonably safe.