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Danger Ahead: the Changing Face of Failure to Warn Claims

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Danger Ahead: the Changing Face of Failure to Warn Claims DANGER AHEAD: THE CHANGING FACE OF FAILURE TO WARN CLAIMS By Michael Drahos, Mark Greene, Jeffrey James, and Larry Smith Failure to warn claims are a standard part of Defense attorneys involved in product Language-Related Issues and liability litigation are familiar with claims al- Adequacy of Product Warnings product liability leging failure to warn against a manufac- litigation, and the turer or seller. The typical failure to warn The sufficiency of a warning may law governing claim is fairly straightforward: the plaintiff be attacked on the basis of negligence those claims is asserts that the defendant placed inad- and strict liability in tort. To recover on equate warnings of potential hazards on a warnings claim in negligence, the well developed. or with the product and the lack of proper plaintiff must establish that the manufac- However, plaintiffs warnings was a proximate cause of harm turerfailed to exercise reasonable care sometimes assert to the plaintiff. Not all failure to warn to provide information in a reasonable about creative theories claims are so basic, however. Many such manner to an appropriate person claims have wrinkles that do not allow the a foreseeable risk that was significant about a failure to standard analysis to be used, whether enough to justify the costs of providing warn. This article it involves a unique argument for insuf- the information.' Meanwhile, the duty to describes three ficiency or the targeting of an uncommon warn in a strict liability cause of action is that a prod- such theories: defendant. Plaintiffs try to assert these based on the simple notion non-traditional claims in the hope of find- uct is defective if the warning is insuffi- warnings involving ing additional sources of recovery, even if cient.2 In contrast to a negligence claim, language barriers, the outlook for success may appear bleak. where the plaintiff must prove a duty a pre- or post- In this article, the authors identify owed by the defendant to him or her, a requires only proof sale duty to warn some of these potential nuances and ex- claim for strict liability amine what arguments may be available of defect. on the part of a for a defense attorney encountering them Regardless of whether the theory salesperson, and in practice. First, this article discusses the of liability is asserted via a negligence one manufacturer's situation of a failure to warn claim based or strict liability claim, the central issue warning in ques- duty (if any) to on language-related issues (e.g. English- is whether or not the only instructions). Next, the article delves tion was adequate. To be adequate, provide warnings into the situation of pre- and post-sale a warning must be communicated "by about a product duties to warn owed by salespersons. Fi- means of positioning, lettering, color- made by another nally, the article weighs in on whether one ing and language that will convey to the manufacturer. manufacturer can be liable for inadequate typical user of average intelligence the warnings relating to products made by information necessary to permit the user another manufacturer. to avoid the risk and to use the product MICHAEL DRAIIOS is a shareholder in the Palm Beach office of Fowler White Burnett, P.A. He l~ ~ ~ _ ~I focuses his practice ou ehe defense of products liability ai d related litigation, such as catastrophic ~_~ retailers s a`~ ~~ ~,x~ '~` c - personal injury and wrongful death. He represents leading manufacturers, disreibutors and in actions Uy individual plaintiffs, class actions and complex aggregate liaUility matters. '-—-= -- - MARK GREENE is the Practice Group Leader of the Product LiaUiliry and Technology Group of ~ Banker Lopez Gassier P.A. and currently serves as Chairperson of the PDLA Product LiaUiliry Committee. JEFFREY JAMES is a shareholder in the Tampa office of Banker Lopez Gassier P.A. He regularly represents defendants in professional liability matters (e.g., attorneys, accowitants, engineers, etc.) and personal injury litigation, with a specific emphasis on airlines and aviation injuries. t ~ --~ LARRY SMITH is a founding partner of Southern Trial Counsel ~ PLC, located in Orlando, He regularly defends American and global companies in complex, catastrophic, or otherwise high-expo- sure personal injury cases throughout Florida and the southeast He currently serves as Co-Chair of the FDLA Product Liability Committee. TRIAL ADVOCATE QUARTERLY -WINTER 2014 -28- safely."3 Ultimately, a warning must verdict in favor of the plaintiff, the Su- adequate, must contain language "(1) be designed so it can reasonably preme Court of New Jersey granted other than English or pictorial warn- be expected to catch the attention of certification. Upon review, the court ing symbols."'o the consumer;(2) be comprehensible determined that the written warning However, the Middle District of and give a fair indication of the spe- provided was inadequate to meet the Florida specifically rejected this rea- cific risks involved with the product; defendants duty to warn of dangers soning in Medina v. Louisville Ladder, and (3) be of an intensity justified by inherent in the use of the product in Inc." In Medina, the plaintiff alleged the magnitude of the risk."4 light of the "unskilled orsemi-skilled that a ladder manufactured by the One of the first cases to address nature of the work and the existence defendant was defective because it the adequacy of a warning written of many in the work force who [did] lacked warnings and instructions in only in English was Hubbard-Hall not read English."8 Spanish. The ladder carried a warn- Chemical Company v. Silverman.5 Several other courts have like- ing label in English with an English- In Hubbard-Hall, two migrant farm wise determined that the necessity of only instruction manual. After pur- workers were killed after being foreign language warnings is a ques- chasing the ladder, the plaintiff stated exposed to elevated levels of insecti- tion of fact for the jury. For example, that he was going to try and install it cides. The workers had limited or no in Stanley Industries, Inc, v. W.M. himself, but noticed that the instruc- ability to read Barr & Co.,9 tions were in English. As a result, in English. the plaintiffs he hired a local handyman to help Although asserted him install it. However, the handy- evidence was The adequacy of a warning is negligence, man also could not read English and presented fact-intensive and may present a strict liability subsequently installed the ladder that the sub- and breach contrary to the installation instruc- ject warning jury issue when language barriers of war- tions. The defendant filed a motion label, written exist between the manufacturer ranty claims for summary judgment and a motion in English, against the in limine challenging the plaintiff's ex- had been ap- and the most likely users of a defendants, pert. At the hearing, plaintiff's coun- proved by the product. the manu- sel advised the court that the entire Department facturerand case "stands and falls on the issue of of Agricul- ~ ~ ~ ._ _ ~" retailer. whether the defendants were legally ture, the jury The plaintiff obligated to furnish Spanish warn- ultimately determined that the defen- alleged that a fire in its facility was ings and instructions." Although rec- dant had not exercised reasonable caused by the spontaneous combus- ognizing the Hubbard-Hall, Campos, care in giving adequate warning and tion of rags soaked in oil that were and Stanley cases that came before instruction. Upon review, the First used by plaintiff's employees to treat it, the court granted the defendant's Circuit affirmed the decision, holding a cutting table. The two employees motion for summary judgment. In so that the jury could have reasonably who used the oil were brothers from holding, the court specifically de- believed that the defendant should Nicaragua whose primary language clined to follow the Stanley opinion, have foreseen that its admittedly was Spanish and who could read calling it "isolated precedent" and dangerous product would be used very little English. The defendants determined that there was no indica- by, among others, "persons like the filed a joint motion for summary judg- tion that Florida law imposed a duty plaintiffs who were of limited educa- ment against the plaintiff's failure to on manufacturers and sellers to pro- tion and reading ability."6 warn claim, arguing that the plaintiff vide bilingual warnings on consumer Nearly twenty years later, the could not establish proximate cause products.12 Supreme Court of New Jersey faced because its employees would not The plaintiff's recognition that a similar issue in Campos v. Fires- have acted differently given their a warning is present is sometimes tone Tire &Rubber Co.' In Campos, inability to read the label before enough to obtain summary judgment, the plaintiff was injured at work while using the product. In response, the even if the content of the message assembling a truck tire. Defendant plaintiff submitted evidence which itself is not comprehended by the Firestone had delivered manuals de- revealed that both the manufac- reader due to a language barrier. scribing the proper method of prepar- turerand retailer had regularly and For example, in Farias v. Mr. Heater, ing the tire to its customers, including actively advertised in the Miami Inc.,t3 the plaintiff asserted a negli- the plaintiff's employer. Firestone had area on Hispanic television, on four gent failure to warn claim against the also provided the plaintiff's employer different Hispanic radio stations and manufacturers of a propane heater, with a chart that was to be kept on in aSpanish-language newspaper. arguing that the defendants should the wall that contained instructions The court ultimately denied the mo- have provided bilingual warnings on safety precautions.
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