However, we do give them at least an incentive to warn against known risks In these situations we are generally dealing with pharmaceuticals and we do not want to overdeter their production SL v. N Kind of like medical malpractices cases Heightened duty Longer warnings are not necessarily better because they may hinder the customer’s focus on the important aspects of the warning Although warnings are normally required to presented to the purchaser, sometimes persons than purchaser may need warnings i.e. one could post a warning on a machine that will be used by non-purchaser/employees the fact that a particular danger is inherent in the use of the product does not mean that the danger need not be warned against allows the potential purchaser to make a informed decision on whether to buy the product There is generally no duty to warn if D could not have known or should not have known of the particular danger at the time of sale However, a seller is charged with knowledge of what reasonable testing would reveal. If testing is not undertaken, or is performed in an inadequate manner, and this failure results in a defect that causes harm, the seller is subject to liability for harm caused by such defect. Danger discovered after Restatement 9…duty to warn (basically N) Know or should have known substantial risk would benefit aere identifiable and likely unaware Warning can be conveyed and acted upon B<PL…justifies warning Danger to small number of people If the manufacturer knows that the product will be dangerous to a small number of people, may it make the decision that the need for a warning is not sufficiently great? This will usually turn on the magnitude of the danger; if the danger is great enough, even a small number of potential bad results will require warning. R3: more severe the harm, the more justified is a conclusion that “the the number of persons at risk need not be large to be considered so as to require a warning.”) ‘substantial’ Obvious danger Often times the fact that a danger is obvious will reduce D’s need to warn about it. However, many recent decisions hold that there remains a duty to warn in situations where a substantial minority of people, P included, were not aware of the danger.
However, we do give them at least an incentive to warn against known risks In these situations we are generally dealing with pharmaceuticals and we do not want to overdeter their production SL v. N Kind of like medical malpractices cases Heightened duty Longer warnings are not necessarily better because they may hinder the customer’s focus on the important aspects of the warning Although warnings are normally required to presented to the purchaser, sometimes persons than purchaser may need warnings i.e. one could post a warning on a machine that will be used by non-purchaser/employees the fact that a particular danger is inherent in the use of the product does not mean that the danger need not be warned against allows the potential purchaser to make a informed decision on whether to buy the product There is generally no duty to warn if D could not have known or should not have known of the particular danger at the time of sale However, a seller is charged with knowledge of what reasonable testing would reveal. If testing is not undertaken, or is performed in an inadequate manner, and this failure results in a defect that causes harm, the seller is subject to liability for harm caused by such defect. Danger discovered after Restatement 9…duty to warn (basically N) Know or should have known substantial risk would benefit aere identifiable and likely unaware Warning can be conveyed and acted upon B<PL…justifies warning Danger to small number of people If the manufacturer knows that the product will be dangerous to a small number of people, may it make the decision that the need for a warning is not sufficiently great? This will usually turn on the magnitude of the danger; if the danger is great enough, even a small number of potential bad results will require warning. R3: “the more severe the harm, the more justified is a conclusion that the number of persons at risk need not be large to be considered ‘substantial’ so as to require a warning.”) Obvious danger Often times the fact that a danger is obvious will reduce D’s need to warn about it. However, many recent decisions hold that there remains a duty to warn in situations where a substantial minority of people, P included, were not aware of the danger.
Torts%20-%20Suter%20-%202009.docx