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They Should Have Told Us: Failure to Warn and Product Liability Lawsuits

According to the Consumer Product Safety Commission, over 38 million people are injured by consumer products each year, and dangerous and defective products kill over 35,000 people annually.

While many if not most of those injuries are a result of problems with the product itself, many other injuries arise because the product was not accompanied by sufficient warnings or other information that could have spared consumers from unnecessary and completely avoidable accidents. When injuries do occur and lawsuits follow as a result of the failure to provide such information, these are often called “failure to warn” or “”marketing defect” cases.

“Failure to Warn”

Broadly, “failure to warn” cases involve one or more of the following:

  • Failure to provide adequate instructions on the proper and safe use of the product;
  • Failure to warn of its inherent potential dangers; and/or
  • Failure to provide adequate information as to the risks of using the product.

Obviously, almost every consumer product, even the most innocuous and benign, can present potential dangers and risks if used improperly. A sharpened pencil, for example, could cause serious damage if someone were to stick in their eye, but that does not mean the pencil designer, manufacturer, or distributor would be subject to “failure to warn” liability for failure to include “Warning: Do Not Stick Pencil Into Eye” on the product packaging. If every conceivable way in which a product could be misused or could cause injury had to be discussed in the product’s instructions or warnings, it would be unreasonable and absurd. If a potential danger is “open and obvious” or not reasonably foreseeable, as with the wayward pencil, there is generally no duty to warn.

Connecticut Product Liability Act

However, if a product presents inherent and foreseeable dangers even if used correctly, the product should come with understandable and visible instructions as to its proper use. A product does not need to present the relatively obvious potential dangers of, say, a chainsaw in order to require adequate warnings as to misuse or risks. In Connecticut, the failure to provide adequate warnings or instructions on any consumer product, where they are necessary, constitutes a product defect for which a product seller is liable under the Connecticut Product Liability Act.

A product seller can be liable to a party who suffers injury or loss from the use of a product if the product could not be used safely by the ordinary consumer without adequate instructions or warnings. In deciding whether a warning was necessary, the factors considered include;

  • the likelihood that the product would cause the harm ultimately suffered by the plaintiff;
  • the ability of the product seller to anticipate that the expected product user would be aware of the risks involved in using the product and the nature of the potential harm;
  • the technological feasibility and cost of warnings and instructions.

A product seller has a duty to warn of hidden dangers in the use of a product in the ordinary, customary way.  A product seller also has a duty to warn of dangers that may result from misuse of a product if the misuse is of a type that the product seller reasonably should foresee. Conversely, a product seller does not have a duty to provide a warning as to a danger that is obviously involved in the customary, ordinary use of the product or that is obviously present if the product is misused.

Even when a warning is provided, it must be “adequate.” In assessing whether a warning that has been provided is adequate, a jury will consider whether the danger is one that is obvious to a user and whether the warning is placed with proper prominence in relation to the risk to which the warning applies.  To be adequate, a warning must be devised to communicate with the person best able to take or recommend precautions against the potential harm.

“Failure to warn” cases will turn on the specific facts of the case, the nature of the injuries and the specifics of the product and its packaging. As consumers, we certainly have come to trust and rely on the information we are provided with the products we purchase. When a manufacturer’s failure to provide thorough and accurate information about a product’s use and dangers leads to serious injury, compensation for this lapse may be available. An experienced Connecticut product liability attorney can evaluate your situation and advise you of your options.

This article has been prepared by Nugent & Bryant for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.