If you ever have the desire to reach your hands under a running lawnmower, use a hair dryer or toaster while in the bath, or consume sleeping pills before operating heavy machinery, consider yourself warned. It could be hazardous to your health and to the well-being of those around you.

Product warnings are everywhere in today’s society, coming in all shapes, colors, and sizes. For manufacturers, this raises issues. What should be the nature and extent of the warning, if any? Do I really need to warn consumers not to use a hair dryer while submerged under water? Common sense, and an awareness of the law, will go a long way towards resolving these questions, safeguarding the public, and avoiding potential liability.

Duty to Warn

In North Carolina the manufacturer of a product has a duty to warn not only those who purchase its products, but anyone who may reasonably be expected to come into contact with that product. This would include extending a warning to the neighbor who borrows the tractor, as well as to the parents of a child who received a paint set as a birthday gift. According to North Carolina’s statute, any “reasonably foreseeable claimant” must be adequately warned. While this appears to be a broad obligation for a manufacturer, the duty to warn is designed to protect the health and safety of the public -- not just direct purchasers or products.

Many products that are used every day are not considered hazardous or harmful and carry no warnings at all. Exactly when the duty to warn arises, and what form the warning takes are more problematic issues for the manufacturer.

It is a logical presumption that the manufacturer of a product is in the best position to evaluate the strengths and weaknesses of its own creation. Therefore in North Carolina, as in many states, the manufacturer of a product has a duty to warn of dangers which it knows of, or should be aware of. Ignorance is no excuse. For example, a manufacturer of children’s toys should be well aware that very young children will often attempt to place objects into their mouths. Consequently, the consumer-parent should be warned of potential choking hazards associated with the use of its product by that age group.

Just how far does the duty to warn extend? To require a manufacturer to accurately predict all possible risks of harm associated with its product, and then warn about each of them, is unrealistic and unduly burdensome. It comes down to a question of foreseeability. A manufacturer has the duty to provide an adequate warning of dangers during the foreseeable use of its product, as well as the foreseeable misuse of the product. Most people are aware, for example, that climbing a ladder poses a risk of harm. However, despite instructions to the contrary, people will often stand on the very top step where there is great instability -- a foreseeable misuse. As a result, a warning must be placed on the step which the manufacturer decides provides maximum height without sacrificing safety. Proceed further and you are literally climbing at your own peril.

We know that a manufacturer of a product has a duty to warn:

• Anyone who may reasonably be expected to come into contact with its product,
• About dangers which the manufacturer knows of or should be aware of,
• During the foreseeable use and even foreseeable misuse of that product.

Consequences of Failure to Warn

What is the alternative? A manufacturer that fails to take appropriate steps to warn faces serious potential consequences. Legal responsibility in North Carolina is premised upon North Carolina’s Product Liability Act. It is a negligence based theory of liability, meaning that there must be some finding of fault on the part of the manufacturer. The manufacturer’s conduct will be judged on whether it was reasonable. When a manufacturer fails to provide an adequate warning, and that failure to warn causes harm, the manufacturer will be liable to pay for damages if it knew or should have known that its product posed a substantial risk to a “reasonably foreseeable claimant”.

For the manufacturer who produces products in other states or overseas, a more stringent liability standard may be imposed. Many states, and much of the European community, have adopted some form of “strict liability”. Under that standard, the relative fault of the manufacturer is not a consideration. Courts merely look to the product itself. The simple analysis is whether or not the product is defective, and did that defect result in injury. If so, the manufacturer is liable. Since an inadequate warning alone can render a product defective under this standard, the need for the manufacturer to evaluate its product’s warnings becomes as important as whether or not the product works at all.

Under the laws of North Carolina, a manufacturer found liable must compensate those individuals who suffer damages as a result of its defective product. This includes claims of pain and suffering as well as those expenses associated with the care and treatment of the claimant, such as hospital bills. Since a person’s pain and suffering is subjective and not easily quantifiable, the total amount of damages is only limited by a particular jury’s view of reasonable compensation. Where circumstances warrant the punishment of a manufacturer that has willfully placed a defective product into the stream of commerce, a Court may award additional money damages called “punitive” damages. North Carolina limits the amount of punitive damages that may be awarded to three times compensatory damages, or $250,000.00, whichever is greater. However, many jurisdictions place no limit on a jury award of punitive damages.

Adequacy of Warnings

While no warning is perfect for all consumers, creating an adequate warning should be the goal of any manufacturer. This is what the law requires, and it will protect the public from potential dangers. A symbol or diagram, such as a skull and cross bones may sometimes be sufficient to convey the desired message. More often, however, a written warning must be implemented. In this instance, the language used, the size of the lettering, its color, and location on the product or packaging are all important factors that must be evaluated in determining the adequacy of a warning. Given the variety of products in the marketplace and the number of individuals exposed to them, there are clearly more possibilities to consider. As a general rule, the warning should be displayed in a prominent location, and be sufficiently intelligible (perhaps in more than one language) in order to reach and protect anyone that may reasonably be expected to come into contact with the product.

While there is a general public awareness that extremely hot liquids can burn, sharp blades will cut and flammable liquids can and do ignite, the manufacturer’s need to inform consumers of potential hazards should not be overlooked. Consultation with a knowledgeable lawyer can assist in the critical evaluation of this duty to warn and related product consideration.

Article updated on 1/31/02. Originally published in The Business Journal on April 30, 1999 in the volume 14, number 4 edition.