Manufacturers have a duty to provide consumers with reasonable warnings and instructions regarding the risks associated with their products. Courts examine several factors in determining whether a manufacturer has a duty to warn consumers of a particular risk. Included amongst these factors are the gravity of the risks posed by the product, the likelihood that it will cause injury to an uninformed consumer, the class of users expected to use the product, the setting under which the product is likely to be used, and the intended or foreseeable uses to which the product can be put.
In situations in which a manufacturer has a duty to warn consumers of risks inherent in the use of its products, it must provide an adequate warning. An adequate warning generally is one that clearly identifies the risk, details the steps that must be taken to reduce or eliminate it, and clearly conveys to the user the consequences of this risk. Although there are no hard and fast guidelines to determine whether a warning is adequate, courts generally look to the following factors: (1) the content and comprehensibility of the warning; (2) the intensity of the warning; (3) the characteristics of expected user groups; and (4) the reliability of any third party who is to act as a conduit of necessary information. Warnings should be in a form that could reasonably be expected to catch the attention of a reasonable person. In this regard, courts consider the size and font style of the printed information, the location of the warning on the product, the physical nature and attributes of the product, and the color of the warning. Thus, a brightly colored, easy to read, unambiguous warning, placed in a position where it is difficult to overlook, is more likely to be deemed adequate.
Adequate warnings present information with a level of intensity that is commensurate with the gravity of the risk warned of. For example, warnings aimed at reducing the risk of death or paraplegia should differ from those that seek to prevent cuts or bruises both in terms of their tone and content. Often times, the same considerations listed above with regard to a warning’s capacity to grab the user’s attention will determine whether the manufacturer has issued a sufficiently forceful warning. Thus, manufacturers might want to bring grave risks of harm home to the consumer by crafting warnings that vividly portray grave risks through the use of pictures, large or bold font size, and language that explicitly lays out the precise consequences that can result from a failure to heed these admonitions.
The American National Standards Institute, Inc. (“ANSI”) creates voluntary safety standards for the form and content of product warnings. A failure to comply with ANSI standards is not viewed as conclusive evidence that an inadequate warning has been issued. Rather, it is merely considered to be some evidence of negligence or product defect. Although compliance with ANSI standards will not completely insulate a manufacturer from failure to warn claims because courts will generally allow a jury to decide whether additional steps should have been taken, it is likely that juries will view compliance with these standards favorably if the manufacturer is named in a failure to warn lawsuit. ANSI standard Z535.6, established in 2006, governs the warnings used in product manuals. ANSI suggests that safety messages should be preceded by a signal word panel and/or a safety alert symbol. A signal word panel is a rectangle that has a distinctive background color that differs from adjacent areas and is clearly delineated by a line or border. A safety alert symbol is an exclamation point enclosed within an equilateral triangle that precedes a signal word. Pursuant to ANSI standards, the DANGER! signal is used to signify that the hazard warned of will result in death or serious personal injury. It is applicable to warnings such as not to drink lighter fluid because doing so will result in death or serious personal injury. In contrast, the WARNING! signal is used to signify that the hazard warned of may result in death or serious personal injury. The CAUTION! signal is used to signify that the hazard warned of may result in minor personal injury. When multiple warnings are grouped together, warnings regarding the most serious hazards should come first. If obvious or relatively minor hazards are identified first, it is possible that users will assume that the entire safety message contains information that they already know or information that is not important and will stop reading after the first few lines. The ANSI standards advise that it is important to advise of the consequences of not following the warning. If the consumer is not aware of the possible consequences, they may be less likely to follow the warnings. If the bottles or product are not properly labeled by the distributor, business, etc. then that may be grounds for calling in a personal injury lawyer such as Valiente Mott to deal with the case.
For more information on drafting product instruction manuals or appropriate warnings contact John Renzulli.