Failure-to-warn liability can arise in either of two circumstances: when foreseeable risks could have been prevented by proper instructions or warnings, but the warnings were not given; or when the warnings themselves, when followed, caused the injuries. To be effective a warning should include a prominent “signal word,” like “danger,” “warning,” “caution,” or “notice,” in a typeface that captures attention, such as full caps and bold followed by an exclamation mark. It should identify the nature of the hazard, such as electrocution or electrical shock; it should describe the consequences of failure to follow the warning; it should state how the danger can be avoided (e.g., “do not use near fire or flame,” or “do not remove safety guards”); and, if possible, it should include pictures or diagrams, especially if users may speak a language other than the one in which the warning is printed. Simplicity and common sense should be employed in warnings in order to make them as effective as possible.
Product warnings may be communicated to the user through labels attached to the product, through owner’s manuals or package inserts, on the packaging itself, or via a combination of these methods. If warning labels are used, they should be located near the hazard about which they warn. For instance, if the warning relates to removal of a safety guard, the label should be placed on the product as close to the guard as practical. The labels themselves should be made and affixed to withstand the environmental conditions in which the product will be used. In other words, if the product will be used outdoors, the label should be made to stand up to sun, wind, rain, and other adverse weather conditions. If warnings are too extensive or complicated to include on a small product label, the label can simply direct the user to the manual for further instructions. The more complicated the product, the more complicated the warning may have to be in order to be deemed adequate.
A manufacturer or seller generally has no duty to warn of “open and obvious dangers,” but they do have a duty to warn about hazards that could arise from any misuse or alteration of the product that is foreseeable. For instance, the manufacturer of a handgun does not have a duty to warn that guns may cause injuries, since causing injury is the purpose for which a gun is designed, but it generally does have a legal duty to warn that guards should not be removed from lawnmowers or snowblowers, especially if the manufacturer becomes aware that users are making these alterations in order to clean the machines or improve their performance.
In evaluating the adequacy of a product warning, the court may ask a series of questions. First, was it likely that the product would cause harm? Was the product being used in a manner that the manufacturer or seller could have reasonably foreseen it would be used? How serious was the harm that resulted? Was it possible or practical to place a warning label directly on the product? Was it reasonable for the manufacturer to assume a certain level of knowledge or sophistication by the user? Was the warning noticeable to and understandable by the average user?
Based on the answers to these questions, the manufacturer or seller may raise several defenses against a Texas failure-to-warn claim. It may argue, for instance, that it had no duty to warn, because the danger was open and obvious (as in the handgun example, above). Or it may defend on the basis that the injured party was a sophisticated user of the product and should have appreciated the danger. Other possible defenses include actual knowledge of the risk, assumption of the risk, and comparative or contributory fault.
The sophisticated user defense may arise when, for instance, a journeyman electrician is injured by a power tool. A seller may defend on the basis of the user’s actual knowledge when, for example, the seller engaged in a detailed discussion of the potential hazard at the time of sale. Assumption of the risk is a related defense, arising when the user knew of the risk, whether or not a warning was given, and went ahead with using the product in a particular manner anyhow. And comparative or contributory fault (or negligence) may be argued by the manufacturer or seller in situations in which it shares responsibility for the accident with the user, based on the user’s own negligent conduct.
A manufacturer’s duty to warn continues even after the sale of the product. In other words, if a product maker or seller becomes aware, post-sale, that a product has a previously unknown potential to cause injury, it must, if possible, communicate that information to the persons who should be warned. This duty may exist only if the users are not aware of the risk, and the same defenses may apply as those, discussed above, relating to time-of-sale warnings.
Although a manufacturer may escape liability for injuries resulting from its otherwise safe product if it gave proper warnings and the user failed to heed them, a manufacturer cannot evade responsibility for an unsafe product by warning the user, no matter how extensive the warnings given. If an unsafe product can be made safe, the manufacturer must make it safe, and product labels or warnings alone will not suffice to make an otherwise defective product safe.