Warning Defect

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Warning Defect by Mind Map: Warning Defect

1. Failure to Warn Defect

1.1. Failure to warn of dangers involved w/ use

1.2. Duty to warn Plaintiff

1.3. Convergence of failure to warn actions and negligence should cause the possibility of holding these lie as negligence cases.

2. Inadequate Warning Defect

2.1. Warning fails to adequately convey attitude of known risk of harm

3. Special Duties

3.1. Obvious Dangers and Known Risks

3.1.1. Majority find that there is no duty to warn of obvious dangers that are generally known

3.1.2. Minority: Preexisting knowledge becomes intervening and superseding cause to the accident. Duty may be obvious, but preexisting knowledge changes Commonly warning is found inadequate, but no cause in fact or proximate causation can be shown in warning defect cases.

3.2. Duty to Warn if ingredient is one to which a substantial # of persons are allergic

3.3. Sophisticated Users

3.4. Learned Intermediary Doctrine (exception of non-delegable duty to warn)

3.4.1. Majority Exception to warning for pharmaceutical duty to warn by conveying the warning to the physician who becomes learned intermediary to the company and patient. 3 Exceptions to the Doctrine

3.5. Employer (No Duty of Manufacturer)

3.5.1. Employer is responsible for warning and instructing employees about use of the product B/C employers control of work site and hazards associated with products and ability to instruct

3.6. Post Sale Duty to Warn

3.6.1. Some jurisdictions impose duty to warn of later discovered risks Duty is ongoing and doesn't end at conclusion of sale/marketing

3.6.2. Very few find that it is beyond the duty to take reasonable steps to provide warnings

3.6.3. Product recalls are a function of federal agency rather than the tort System De

4. Key Concepts

4.1. To much warning may cause dilution of importance

4.2. Majority apply fault based standard. Manufacturer Knew or should have known of the risks

4.2.1. Presumed as an expert in the field, and if a safer method is out there, then manufacturer constructively knows it.

4.3. Warning is not an applicable substitute for a reasonable alternative design

4.3.1. No band-aid

4.4. No actual test. More issue spotting

4.5. Adequacy is determined by the jury as a question of fact


4.6. Majority give plaintiff presumption that a user would have read and headed an adequate warning.

4.6.1. Defendant may rebutt with facts

4.6.2. Assists in causation proof after inadequate warning