A Manufacturer's Post Sale Duty to Warn - An Update

August 19, 2019

1In 2008, RCO Law (Robison, Curphey & O’Connell) published a state-by-state analysis addressing whether states had either (i) adopted the Restatement (Third) of Torts: Products Liability §10 (1998), which imposes a duty on manufacturers under certain circumstances to warn consumers of potential dangers associated with products after the products have been sold, or (ii) imposed that duty on manufacturers through case law without specifically adopting the Restatement. That article was updated in 2013. This memorandum is a further update.

Since the 2013 update there have been developments in the law in this area in three states – Minnesota formally adopted the Restatement (Third), and Illinois and South Carolina adopted the duty to warn about latent defects.

It is common knowledge that manufacturers have certain duties to consumers who purchase their products as well as, in certain circumstances, members of the general public who may be affected by those products. The duties traditionally have included such common sense requirements as avoiding designing or manufacturing products negligently or in a way that is likely to lead to an injury. An enormous body of law surrounding product liability has developed to implement these requirements.

Throughout the development of the common law, the manufacturer’s duties typically ended when the product was sold to the consumer or distributor. In other words, while a manufacturer could be held liable for a failure to meet its duties with respect to designing and manufacturing the products prior to the sale of the products, and a breach of those duties could lead to liability to parties injured long after the product was sold, that liability was focused solely on the manufacturer’s actions or omissions prior to the sale of the products, and there were no specific actions the manufacturer was required to take (or avoid) once the sale occurred. Approximately 50 years ago, courts began to consider whether any post-sale duties also should be applied to manufacturers. At that time, the Second Restatement of Torts did not address any such post-sale duties.2 Despite the absence of a reference point in the Restatement, some courts began to hold that manufacturers had a post-sale duty to warn consumers in certain circumstances when the manufacturer learned after the sale of the product that it presented a hazard. By the mid-1990s, the American Law Institute determined that a sufficient number of state supreme courts had created a post-sale duty to warn that the topic should be addressed in the Third Restatement.

Accordingly, the Restatement (Third) of Torts: Products Liability §10 (1998) provides as follows:

(a) One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide such a warning.

(b) A reasonable person in the seller’s position would provide a warning after the time of sale if:

(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and
(2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the burden of providing a warning.

When will this provision apply? It will apply to all products sold by a manufacturer as to which the manufacturer learns of a defect or hazard in one of its products after some or all of that model or type of products have been sold, the end users can be identified and communicated with, and the risk of injury or death resulting from the hazard is greater than the burden of providing the notice to the end users. In some cases, depending on the manufacturer’s distribution system, the notice/warning will be sent through independent distributors who in turn will have to notify their customers. In other cases, the manufacturer will have information on the end users from, for example, returned warranty registration cards, and will provide the notice directly. The Third Restatement provision offers no guidance on the specific type of notice that would be required.

Note that this provision requires only a warning to consumers, not a recall. In fact, §11 of the Third Restatement makes it clear that a manufacturer is not liable for a failure to recall products unless a recall is required by a statute or regulation or unless the manufacturer voluntarily initiates a recall but implements it negligently. Accordingly, the following materials focus exclusively on the post-sale duty to warn that was recognized for the first time in the Third Restatement in 1998.

We believe that it is useful for our clients to have current knowledge about what states have adopted the post-sale duty to warn provisions of the Third Restatement, and more generally what the status of the post-sale duty to warn is throughout the country, including in states that have implemented the concept through a statute or through common law even if the Third Restatement provision was not formally adopted. As the summary at the beginning the materials reveals, only three states have formally adopted Section 10 of the Third Restatement. Many other states, however, have adopted some form of the post-sale duty to warn concept. 

We believe that information about the marketplace and the manufacturers’ duties in that marketplace is important to our clients in assessing both their responsibilities and their potential costs of producing the goods. Since the American tort system is largely one of state law, we believe that this state-by-state survey of where and when a post-sale duty to warn exists will assist our clients in determining what aspects of this legal concept will be applicable to them in each state where they sell their products. Since a slight majority of the states impose some form of post-sale duty to warn on manufacturers, manufacturers with a national distribution of goods should factor in this duty generally whenever they learn of a potential hazard in a product. Manufacturers with a less than national scope of sales will want to carefully calibrate their obligations in light of the status of this duty in the states where there products are sold.

We have prepared the following summary depicting the status of the post-sale duty to warn in each state. We also have prepared a detailed explanation of the status of this legal concept in each state, including citations to the leading cases.   Please contact a member of the Manufacturing Practice Group at RCO Law to request a copy of the complete report or to discuss any particular situation or a planning process for identifying and managing the post-sale duty to warn.

Adopted Restatement 3d § 10

Alaska Iowa Massachusetts Minnesota

Limited Post-Sale Duty to Warn
(only for latent defects)

Arizona
Colorado
Hawaii
Illinois
Kansas
Michigan
New Mexico
Pennsylvania
South Carolina

Post-Sale Duty to Warn
(not expressly limited to latent defects)

Connecticut
Georgia
Louisiana
Maryland
New Jersey
New York
North Carolina
North Dakota
Ohio
South Dakota
Washington
Wisconsin

Split/Uncertain

Kentucky
Nevada
Virginia

Adoption of Duty Predicted by Federal Court

New Hampshire
Utah
Virginia

No Post-Sale Duty
(either expressly or no case law support for such duty)

 

Alabama Arkansas  
California Delaware Florida
Idaho Missouri Indiana
Mississippi Oklahoma Montana
Nebraska Rhode Island Utah
Oregon Texas (exceptions) Wyoming
Tennessee West Virginia  
Vermont    


1This material was compiled for the Manufacturing Practice Group of RCO Law (Robison, Curphey & O'Connell) by Zack Lemon, with limited direction from David Arnold.              

2Restatements of the law are compilations of general and generally applicable statements of law in different areas published by the American Law Institute. The Restatements are not binding but are very influential in the evolutionary progression of the law.

 

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