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Failure to Warn
A product liability issue

Boating Week 2000

Boating Week logo

Richard J. McAlpin of McAplin and Brais of Miami Fl delivered this presentation.

He generally represents the defense (manufacturer) in product liability issues.

His talk focused on "Failure to Warn" resulting in personal injury and a suit against someone.

Just about anybody who had contact with the product can be sued: manufacturers, suppliers, dealers, distributors, rental yards, even leasors.

He began by trying to frame where failure to warn fits into the entire product liability picture.

There are two general theories advanced in product liability:

  1. Negligence
  2. Strict Liability in Tort
Strict Liability in Tort has 3 segments:
  1. Manufacturing defects
  2. Design defects
  3. Failure to warn
The law defines failure to warn as the problem in two situations:
  1. Foreseeable risks could have been protected by instructions or warnings
  2. The warnings themselves, when followed caused the injuries.
You also have to warn of foreseeable misuse (PWCs jumping boat wakes).

You have no duty to warn of open and obvious dangers (judges sometimes let the jury decide what is open and obvious). The most obvious cases will be stopped by the judge.

You also have to warn of foreseeable alterations (removing guards, safety switches, etc,)

Elements of an effective warning

  1. Signal word (danger, warning, caution, notice)
  2. Identify the nature of the hazard (drowning hazard, electrical shock hazard, etc.)
  3. Identify consequences of failure to follow the warning (death by drowning, electrical shock, etc)
  4. Express how to avoid the danger (turn off power, avoid open flame in the area, etc)
  5. Pictorials are often used, especially in multiple language situations.
  6. The use of pictorials or other alert warning symbols (exclamation point) may be combined with the signal word to provide the user with a clear indication of the level of the hazard.
Failure to warn only covers personal injury issues, it does not cover property damages. Warnings do not address property damages.

Two standards are heavily used by the boating industry in the creation of warnings. ABYC Technical Bulletin T-5 (based on SAE J-284 standard) and ANZI Z-535.

When drafting warnings, simplicity and common sense should be used.

Use affirmative direct language (Do Not Remove Cover) and avoid the use of contractions.

Avoid using too many warnings. Warning labels should be located near the hazard. Warnings should be durable (last in outdoor sun and weather)

Your duty to warn extends to 2nd and 3rd owners and on down the line.

The owners manual is a great way to convey your warnings. However; it often does not follow the boat through multiple owners. You can put a plaque on the unit saying manuals are available.

RBBI Note: in the e-business session, Stingray mentioned they are in process of putting their manuals online including the accessory manuals.

Minimal warnings are required on a very simple product.

Evaluating Adequacy of Warnings:

  1. Was it likely the product would cause harm?
  2. Was the product being used in a foreseeable manner?
  3. How serious was the harm? Death will force much greater scrutiny on the warning than minor injuries.
  4. Was it technically feasible to place a warning there?
  5. What knowledge level could the manufacturer presume the user had? You can expect those who operate very complex machines (airplanes) to have more basic knowledge than a ditch digger. The level of duty to warn changes with the level of complexity of the product.
  6. You can put some reliance on verbal warnings and the experience of the user.
  7. Was the warning comprehensible to the average user?

Legal Case Example

Two fishermen died from sulphur dioxide they used to process fish.

A claim was made that no one told them of the danger. The chemical had a warning saying it could mix with water and release toxic sulphur dioxide gas. The warning was ruled inadequate.

You need to evaluate the adequacy of warnings. What procedure did the manufacturer use in designing the warning provided? You are better off if you discussed it, bounced ideas off the customers, etc.).

The Coast Guard has few standards for boats. ABYC created voluntary standards that hold up well in the courtroom. Plus, the courts will hold you to them. They are the only measure the judge and jury have. If you cannot comply with the ABYC guidelines, you need to document why they were not followed.

Practical Pointers

  1. Use consultants in drafting or evaluating warnings
  2. Consider using generic owners manuals. The NMMA has about 10 different ones. (pontoons, runabouts, etc).
  3. Observe the product in use (and keep an eye out for misuse)
  4. Poll your dealers on misuses, modifications and disconnections they have observed
  5. See what your competitors are doing with their warnings and manuals
Defenses to Point of Sale Failure to Warn Claims

  1. Open and Obvious
  2. Sophisticated use (no duty to warn a sophisticated user when they already possess the knowledge)
  3. Actual knowledge (you can show the specific person injured already had actual knowledge of the specific risk)
  4. Assumption of the risk (user voluntarily consents to encounter a know danger)
  5. Comparative Fault (the fault is shared between the manufacturer and the user because the user was partially at fault)
  6. Federal Preemption (when the federal government chooses not to regulate a particular field such as prop guards)

Safer Alternative Design Theory

This recent theory says you can't protect a lousy design with warnings. You will be held liable if a better way exists.

Post Sale Warnings

You have a duty to warn if a hazard comes to your attention after the sale.

You only have this duty if you can identify and effectively communicate with the person to whom a warning may be provided.

Also, you only have to warn the user if they are not aware of the risk.

There are still several open questions regarding post sale warnings.

Defenses to suits in this area are the same as those in point of sale warnings, plus "state of the art". You can say you used the state of the art at the time the unit was manufactured, now it is many years later.

Legal Case Example

Owner of an outboard motor removed the OB cowling to rope start the motor, pulled the rope and left the cover off. Later he hit a stump with the drive, it flew up into the boat and the uncovered portion of the drive hit the operator.

Owner was 29 years old, had been in air force and had been trained in diesel mechanics. He claimed he did not get the manuals.

Owner originally won the case, but award was later reduced 40% on appeal based on his prior knowledge.

Legal Case Example

Two adults and three children were killed when their 17 ft. Bayliner sailboat turned over and flooded on Lake Michigan.

Lawsuit alleged Bayliner failed to effectively design the boats centerboard trunk hole through which a rope runs to raise and lower the retractable centerboard keel, somewhat like a pocketknife.

Bayliner had recognized the hazard after the sale and conducted a retrofit campaign. No incidents of the problem resulting in injury were reported before this case.

Jury ruled the product was not defective, no duty to warn existed.

Questions From the Audience

Multi-lingual Requirements?

You must meet the labeling requirements of the country you sell the product in.

If the product was initially sold in the U.S. and later sold abroad, there is some question about liability.

Some countries have low literacy levels. Pictorials can be very important in those situations.

A new drain plug that provided an audio alarm when it was not "in" was shown at this show. Since it seems safer, will it now be required?

Not required right now. Widespread use and the courts will determine that.

Can you elaborate on the Federal Preemption given to prop guards?

The U.S. government considered the issue, had panels and studies. They reached a decision. Guard are not required by law.

International Liability Issues?

One international gentleman in the audience said his country has direct liability. You only have to prove you were injured by the unit and the manufacturer is liable.

Receiving and Owners Manual

Some companies now make you "sign off" that you received an owners manual.

RBBI Comments:

! WARNING. These notes lack completeness and may contain errors.
Following them may cost you a lawsuit.
Do Not take them as professional advice.
Contact Mr. McAlpin or other professionals if you need assistance in this area.

The session was about as interesting as a session of this nature can be. Mr.Mc Alpin did a great job in organizing the material, plus he is a pretty good presenter.

He covered a lot of material, including several case examples I failed to post at this time in the interest of trying to post the entire Boating Week coverage as soon as possible. His handout includes the actual legal references to several cases.

At the close of several sessions, presenters said that if we would give them a business card, they would send us a printed copy of their presentation. I received Mr. McAlpin's presentation in just one week and am still waiting for all the rest. A big thanks to him for putting this material together, presenting it at the conference and for promptly sending me a copy.

If you have further questions, you can reach his firm at: mbattorney@aol.com

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