Every year hundreds of people are killed or seriously injured because of a defective product. In a product liability case, there are three main theories under which a manufacturer can be held liable for an injury caused by its product. These theories include a design defect, a manufacturing defect, or a failure to warn.
Failure to Warn
Manufacturers are responsible for warning potential users of the non-obvious hazards associated with the use, or even the foreseeable misuse, of their products. In a failure to warn case, it may be that the product was properly designed and manufactured, but the manufacturer did not adequately inform the public of potential danger. That means that the person using the product did not have enough information to accurately size up the risk of the product and make a decision on whether to use it. Manufacturers are in a unique position to know that there are specific risks that can be involved in the use of a product and they have a duty to warn consumers about those risks.
Duty to Warn
The manufacturer has a duty to warn consumers about dangers that it knew or should have known about. There is also a duty to warn consumers of dangers discovered after the product was sold. The manufacturer does not have a duty to warn of a danger that is open and obvious or is a known danger.
Misuse of the Product
A manufacturer may also have a duty to warn about the potential dangers of a misuse of the product. While a manufacturer doesn’t have to warn about every possible, conceivable danger, the warning must be given if a use is reasonable and foreseeable. For instance, cotton swabs are not supposed to be used to clean the inside of the ear, but many people do just that. So there is a warning on the Q-tips box telling people not to put the cotton swab in their ear canals. This misuse of the product was reasonable and foreseeable.
Adequacy of the Warning
In a failure to warn case, a plaintiff must show that the absence of a warning or an inadequate warning caused the injury. A vague and inadequate warning is one where the average user wouldn’t understand what the danger is or how to avoid it. A court will look at some different factors to determine if the warning is adequate:
- Where is the warning placed?
- Are there pictures or written words?
- What color is the warning?
- Is the warning easy to read and understand?
An adequate warning allows a consumer to make an informed choice about whether to use the product.
Cause of the Injury
A plaintiff must also prove that an adequate warning if given, would have been read and followed and the injury would not have occurred. In the case of an inadequate warning, this means that it must be shown that the plaintiff read the warning and relied on it when he or she used the product and was injured.
If you’ve been injured by a defective product, you need to consult with an experienced lawyer. Andrea Bonina is known as one of the best product liability lawyers in the state of New York and has been featured in the New York Times “Super Lawyers” section for the past eleven years. Schedule a consultation with Bonina & Bonina, P.C. and we will evaluate your case for free. Contact us online or call us at 1-888-MED-LAW1. Home and hospital visits are available. Se habla español.