Failing to warn about a potentially dangerous product or condition has become a “disfavored” cause of action in California. Woodland Hills personal injury attorney Barry P. Goldberg believes that “failure to warn” should not be overlooked and can create the cornerstone of a successful case.
Logic dictates that an injured person should see some obvious dangerous condition and that warning should not be necessary. That argument often prevails at trial. However, the law recognizes that people are reasonably occupied with other things while doing their job, operating machinery or driving. In such circumstances, a manufacturer has a duty to warn of a potentially dangerous condition. It is for the jury to decide whether that “failing to warn” caused or contributed to the accident or injury.
In California, strict products liability law recognizes three types of product defects: (1) manufacturing defects, (2) design defects, and (3) warning defects. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995.) This article concerns to the third category, “which applies to ‘products that are dangerous because they lack adequate warnings or instructions.’ [Citation.]” (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 577 (Taylor).)
“Our law recognizes that even ‘ “a product flawlessly designed and produced may nevertheless possess such risks to the user without a suitable warning that it becomes ‘defective’ simply by the absence of a warning.” [Citation.]’ [Citation.] Thus, manufacturers have a duty to warn consumers about the hazards inherent in their products. [Citation.] The purpose of requiring adequate warnings is to inform consumers about a product’s hazards and faults of which they are unaware, so that the consumer may then either refrain from using the product altogether or avoid the danger by careful use. [Citations.] (Taylor, supra,171 Cal.App.4th at p. 577.) Accordingly, California holds “manufacturers strictly liable for injuries caused by their failure to warn of dangers that were known to the scientific community at the time they manufactured and distributed their product. [Citations.]” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64-65.)
However, “[t]o be liable in California, even under a strict liability theory, the plaintiff must prove that the defendant’s failure to warn was a substantial factor in causing his or her injury. [Citation.]” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1604 (Huitt); see also Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968 (Rutherford);Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 112 (Conte); CACI No. 1205 [plaintiff has burden of proving that lack of sufficient warnings or instructions was a substantial factor in causing plaintiff’s harm].) “The natural corollary to this requirement is that a defendant is not liable to a plaintiff if the injury would have occurred even if the defendant had issued adequate warnings. [Citation.]” (Huitt, supra, 188 Cal.App.4th at p. 1604.)
Courts have long recognized that proving causation in a defective products case can be difficult and, indeed, that direct evidence of causation may not exist. (Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 183.) Thus, a plaintiff may carry his burden of proving causation by circumstantial evidence. (Id.) For example, jury instruction CACI No. 202 demonstrates that “[s]ome evidence proves a fact directly,” and that “[s]ome evidence proves a fact indirectly,” that indirect evidence is sometimes referred to as “‘circumstantial evidence,’ ” and that “As far as the law is concerned, it makes no difference whether evidence is direct or indirect.”
An aggressive advocate should employ a Human Factors expert to examine the circumstances of each injury. Such an expert may opine that a warning would have likely triggered the plaintiff’s awareness of the dangerous condition while he or she was reasonably distracted on other matters. Further, a jury should be entitled to decide whether that scenario is reasonable given the significance of the risk presented and the relatively inexpensive cost to apply a warning to a product or device. This well recognized legal theory should never be overlooked.
For more information about the article author and attorney Barry Goldberg’s Personal Injury Expertise, please visit his web site: Woodland Hills Civil Litigation Attorney;http://www.BarryPGoldberg.com
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