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Developments in the Duty to Warn A
recent Minnesota Supreme Court case clarified many aspects of the
law governing product liability failure-to-warn cases, but may also
have provided the basis to argue that the supplier’s duty to by J. David Prince In
many products liability cases — the “failure-to-warn” cases — the
essence of the claim is that the product manufacturer or supplier
failed to provide information about the risks associated with the
use of the product that a reasonable manufacturer or supplier should
have foreseen was necessary to avoid creating an unreasonable risk
of harm. The failure to provide
that information means that the manufacturer or supplier was negligent
or, what amounts to the same thing, the absence of that information
makes the product “defective.” Negligence
and so-called “strict liability” claims in failure-to-warn cases have
merged in Minnesota law.1
Whether the allegation is that the defendant was negligent
for failing to warn, or that the defendant is “strictly liable” for
having made a product that is “defective” because it was not accompanied
by an adequate warning, amount to the same thing.2
The plaintiff is claiming, of course, to have suffered harm
because of that failure to warn. If
the supplier has a duty to warn, the warning typically must be given
directly to the product user either by placing a warning on the product
itself, on its packaging, or in materials that accompany the product
such as an instruction manual. However,
where the product is expected to pass through the hands of an intermediary
on its way to the end user, then the supplier may often discharge
her duty to warn by providing a warning to that intermediary. In
its recent opinion in Gray v.
Badger Mining Corp.3 the Minnesota Supreme Court focused specifically
on the question of when it is reasonable for the supplier to rely
on an intermediary to warn the end user.
The Court also summarized a considerable portion of Gray
brought suit alleging that he had developed silicosis as a result
of exposure to silica dust in his workplace, a foundry where sand
was used to make molds for casting metal objects.
He brought suit against several defendants including Badger
Mining Corporation who, for part of the time that Gray was employed,
supplied sand to his employer, Smith Foundry.
Gray claimed that Badger Mining was negligent4 for failing
to warn him of the risks of exposure to silica dust and that their
negligence caused him to be exposed to the dust which caused his silicosis.
Badger Mining argued that they had no duty to warn Gray in
light of his own, and Smith Foundry’s, knowledge of the risks of silica
dust exposure. The
trial court denied Badger’s motion for summary judgment, ruling that,
as a matter of law, Badger had a duty to warn Gray of the hazards
of inhaling silica dust particles.
Gray and Badger then entered into a settlement agreement in
which they stipulated to certain facts and preserved Badger’s right
to appeal the question of whether it had a duty to warn Gray.
The
Court of Appeals reversed the district court, concluding that Gray’s
employer, Smith Foundry, was a “sophisticated intermediary” who knew
or should have known of the risks of silica dust exposure and was
in a better position to warn Gray, its employee.
The appellate court further concluded that Badger Mining could
therefore reasonably rely upon Smith Foundry to provide to Gray the
necessary warnings about risk and that consequently Badger Mining
had no duty to warn Gray directly. The Court of Appeals’ result is in accord with
two recent cases from neighboring jurisdictions involving very similar
claims by foundry workers against the suppliers of sand to their employees.
In
Haase v. Badger Mining Corp.,5 the Wisconsin
Court of Appeals concluded that the defendant sand supplier had no
duty to warn the plaintiff because the foundry where the plaintiff
worked was a sophisticated intermediary who was well-aware of the
risk. Therefore, the sand supplier
could reasonably rely on the employer to warn the plaintiff.
In Bergfeld v. Unimin Corp.,6 the In
Gray, however, the result
was different. The Minnesota
Supreme Court posed the issue on appeal as “whether the raw materials
supplier, respondent Badger Mining Corp. (Badger Mining), breached
a duty to warn [Gray] of hazards associated with the use of silica
in foundry processes.”7 Contrary to the Haase and Bergfeld cases, the Court concluded
that “genuine issues of material fact precluded the district court
from deciding, as a matter of law, that Badger Mining had no duty
to warn”8 the plaintiff directly and therefore reinstated the judgment
for Gray. Manufacturer’s
Knowledge and Duty Reviewing
Minnesota law on a product supplier’s duty to warn, the Court began
with the basics: A duty to
warn or provide adequate instructions for safe use of a product arises
“if it is reasonably foreseeable that an injury could occur in its
use.”9 This means that a duty to warn arises
when (1) the supplier should reasonably foresee a risk of harm, and (2) that risk is great enough to make
the product not reasonably safe. In
other words, the duty is not to warn about just any risk, only about
unreasonable risks. The warning must “(1)
attract the attention of those that the product could harm; (2) explain
the mechanism and mode of injury; and (3) provide instructions on
ways to safely use the product to avoid injury.”10
The
product supplier is held to the standard of an expert as to the risks
that might be presented by its product and is expected, therefore,
to have the foresight of an expert when it comes to product-related
risks. She must keep abreast of new knowledge and discoveries
in her field.11 She must foresee
and warn not only about the risks associated with intended uses, but
also about reasonably foreseeable unintended or improper uses of her
product,12 “particularly if the supplier has no reason to believe
that the users will comprehend the risk.”13
This means that the supplier must not only provide instructions
for safe use of the product in its intended uses, but must also warn
against foreseeable improper uses when it is also foreseeable to the
supplier that users may not be fully aware of the risk of improper
use. Finally,
there is no expectation that the product supplier knows the unknowable. Obviously, one cannot warn about risks that
no supplier could or should reasonably foresee.14 Hence
what the supplier knows or should know about risk is usually the determinative
factor in establishing the supplier’s duty to warn. However, the supplier’s knowledge about risk
is not always the determinative factor.
In those cases in which the risk, or how to avoid it, or both,
is open and obvious and generally known to prospective users of the
product, a warning from the supplier adds nothing to the user’s knowledge
about product-related risk nor secures any additional degree of safety. Consequently there is no need for a warning
and therefore no duty to warn users of what they should already know.15 Whether
there is a duty to warn at all is a question of law for the court,
as is the scope of that duty. In
Gray, the Court determined, at least implicitly,
that the scope of the defendant’s duty was very broad. The defendant not only had a duty to warn about
the risks of silica dust inhalation but its duty also extended to
informing about which sort of respiratory protection to use.16 Once
the existence and scope of the duty is determined by the court, the
question of whether the defendant breached that duty is a question
for the fact-finder. After
setting forth the general rule that a product supplier has a duty
to warn of reasonably foreseeable risks, the Court in Gray
then lists several “defenses,” including the “sophisticated intermediary”
defense, that might obviate or discharge the supplier’s duty.17 The
Court first observed that these defenses “do not alter common law
principles of negligence and causation but instead describe the application
of those principles to various sets of common fact patterns.”18 This is an especially important point
that cannot be overemphasized. Those
common law principles require the plaintiff to show that the defendant
had a duty, that she breached that duty, and that her negligence caused
the plaintiff’s harm. The defendant
is then liable for that harm unless, of course, she has a complete
or partial defense. Intermediary’s
Knowledge and Duty An
intermediary, often an employer, between the product supplier and
the end user may know fully of the product-related risks to the end
user either because the intermediary has obtained that knowledge independently
or because the supplier has warned the intermediary.
In such circumstances, it is reasonable for the supplier to
rely upon this “sophisticated intermediary” to give the warning to
the end user, particularly “[w]here it is impracticable for the supplier
to give adequate warnings directly to all who may use or come into
contact with the product.”19 This is especially
true where the intermediary is an employer who not only knows of the
risk but is more intimately familiar than the supplier with the workplace
and the working conditions of its employees.
The focus, as it should be in a negligence inquiry, is on the
conduct of the supplier. If
it is reasonable for the supplier to rely on the intermediary to provide
the warning, then the supplier fulfills its duty by warning the intermediary.
It does not breach its duty to warn by failing to directly
warn the end user and is thus not negligent for failure to warn. In
Gray, Badger Mining argued
that Gray’s employer, Smith Foundry, was a sophisticated intermediary
who was fully aware of the risks to its employees of silica exposure
and how to protect them from it. Smith
Foundry’s knowledge, combined with its employee safety training sessions,
made it reasonable, Badger argued, to rely on Smith Foundry to warn
Gray about the risks of silica exposure and explain how to avoid those
risks.20 However, the Court concluded that, while Badger
had indeed provided Smith Foundry with general warnings about the
dangers of silicosis, it did not share the “special knowledge” that
it had about effective precautions and
it had no reason to believe that Smith possessed that special knowledge. There remained, the Court concluded, a jury
question about the adequacy of Badger Mining’s warning to Smith. Consequently, the Court could not conclude,
as a matter of law, that the warning was adequate and that Badger
Mining was not negligent.21 The overarching question here is whether the defendant supplier
acted reasonably. Once there
is a warning about the risk from the supplier, the means of avoiding
that risk may be reasonably obvious.
If the risk is not apparent, but the means of avoiding it is,
then a reasonable supplier fulfills her duty by simply warning about
the risk and there is no further need to explain what is obvious.
In other instances, however, simply making the risk apparent
is not enough. A reasonable supplier would also provide information
about how to avoid that risk because that information is not sufficiently
evident. This question of whether
the warning was adequate is, as the Court points out, typically a
question for the jury. Though
duty and breach are separate issues, a court’s determination that
the scope of the defendant’s warning duty is very broad obviously
increases the likelihood that the jury will find that the defendant
was negligent for failing to warn adequately.
The Gray court’s determination that Badger’s duty was to not only warn
about inhalation risks but also to provide detailed information about
proper respiratory protection effectively meant that the defendant
bore a very substantial burden in showing that it had warned adequately,
especially with respect to the “how to avoid the risk” part of the
warning. It is not surprising, therefore, that the Court
then concluded that a jury could find that Badger, though it had warned,
had not warned enough. Examining
the record in considerable detail, the Court says Badger had not shown
that Smith Foundry’s knowledge about silica inhalation risk prevention
“was equal to that of Badger,”22 so that left for a jury the question
of whether Badger had fulfilled its duty. However,
it is not at all apparent why a sand supplier would have greater knowledge
than foundry managers about how foundry employees could avoid the
risks of silica inhalation, particularly in light of OSHA workplace
safety regulations regarding silica exposure, occupational health
information obtained by the foundry from both government and industry
bodies, and the employer’s more precise knowledge about its own employees’
working conditions. Perhaps, had the case been tried, the defendant
could have shown that the employer was indeed a “sophisticated intermediary.” But despite the roadmap provided by cases like
Haase23 and Bergfeld,24 it was unable to make this showing
clearly enough to obtain summary judgment. Relative
Knowledge of the Parties Gray v. Badger Mining Company
is an effort by the Minnesota Supreme Court to restate and perhaps
to clarify much of the law applicable in At
more than one point in its opinion, the Court notes that the defendant,
Badger Mining, knew more about the risks associated with exposure
to silica dust than did the plaintiff, Gray, or the intermediary,
Smith Foundry. The Court says that “there is evidence that
Gray’s knowledge was inferior to that of Badger Mining,”25 that “Badger
Mining had greater general knowledge of the dangers,”26 and that “[i]f
the manufacturer has superior knowledge, it has a duty to relay that
information to the intermediate purchaser” in situations where providing
a warning to the intermediary may discharge the supplier’s duty to
warn.27 Apparently these comments were meant simply
to add emphasis to the Court’s basic conclusions that Badger Mining
had a duty to warn Gray and that it was not sufficiently clear from
the record that they had warned adequately, either directly or indirectly
through Gray’s employer, so that summary judgment for Badger was appropriate. While
the Court’s language suggests that the supplier had a duty simply
because it knew more than the intermediary about the risk and ways
to avoid the risk, it also began its analysis saying that the sophisticated
intermediary and other defenses “do not alter common law principles
of negligence.”28 Those principles require a warning if
a reasonable supplier would warn.
No matter how much a supplier knows about product-related risks,
she could reasonably believe that an intermediary-employer knew, or
should have known, enough about both the inhalation risk and about
respiratory protection given its sophisticated knowledge of the foundry
business. The supplier could also reasonably believe that
this intermediary would provide that information to its own employees
so that there was no need for the supplier to warn. If
the Court literally means that a product supplier has a duty to warn
whenever it knows more about product-related risks than product users,
then that would be new law indeed.
It would mean, in effect, that a supplier’s duty is to always
make users as knowledgeable about product-related risks as the supplier.
This duty would impose an unreasonably heavy burden upon product
suppliers. It would usually
be difficult, and sometimes be impossible, for the supplier to bring
the user completely up to the supplier’s level of knowledge regarding
all product-related risks. Even
if the plaintiff can show that the defendant knew more about the product’s
risks, that showing all by itself should not be enough to establish
that the defendant owed the plaintiff a duty to warn.
That duty should arise only when (1) the defendant knows more
in the sense that it knows about risks that are reasonable to assume
are unknown to the plaintiff, and (2) those risks are unreasonably great.
It should be enough for a supplier to satisfy her duty if she
has adequately warned the plaintiff of unreasonable risks.
She should not have to warn of all risks, no matter how insignificant,
even if she knows about them and the user does not.
Nor, having warned of the risk, should she have a duty to warn
about the possible consequences of taking that risk if those consequences
are reasonably obvious. Ultimately,
it is not a question of whether the defendant knew more than the plaintiff
about a risk; it is a question of whether the defendant knew of a
risk about which a reasonable defendant would have warned. In
these cases involving an intermediary, therefore, what the defendant
knows about risk and what the intermediary knows about risk are both
important factors in assessing questions of duty and negligence. However, the relative degree of knowledge about
risk as between defendant and intermediary is, all by itself, not
determinative in answering these questions.
Discovery
and Evidence at Trial It
is obvious from the foregoing that the most important evidence in
failure-to-warn cases is the evidence regarding the parties’ knowledge
of the product’s risks. Whether
the case is pled as a negligence claim or as a claim of strict liability
for a defective product, the same basic evidence needs to be developed
on the same basic issues. A
plaintiff must prove all of the elements of a cause of action. He must show the existence of a duty, the breach
of that duty, and that the defendant’s negligence was a direct cause
of the harm suffered. Evidence
tending to show what the parties knew about the product’s risks may
be relevant to all of these issues as well as to questions of the
plaintiff’s contributory negligence or assumption of the risk. Presenting
enough evidence to show that there was a duty
to warn is ordinarily not a steep hill for the plaintiff to climb,
but it is a hill that must be climbed before he can go further. Gray
demonstrates that a defendant will ordinarily find it difficult to
convince a court that there was no duty to warn of the risk that resulted
in harm to the plaintiff. The
plaintiff should focus his evidence regarding the duty issue on showing
that the harm suffered should have been foreseeable to the defendant
not only (1) because the defendant failed to warn about the risk but
also (2) because the defendant failed to provide precise information
about how to avoid that risk. The defendant, on the other hand, should make
every effort before trial to discover what the plaintiff knew of the
product’s risks and to develop any available evidence relative to
what was generally known, or should have been known, to product users
regarding the product’s risks. Where
there is an intermediary, as in Gray,
the defendant is essentially attempting to show that the plaintiff
should have known of the risk because the intermediary should have
warned him about it. If the evidence shows that the plaintiff should
have been fully aware of the risk and able to protect himself
against that risk, then that should be enough to convince the court
that the defendant had no duty to warn the plaintiff.
Summary judgment for the defendant is appropriate in such a
case. If,
however, the evidence shows that the defendant had a duty to warn,
then the questions of the defendant’s negligence and of causation
will usually go to the jury for resolution.
As
to the question of negligence
or product defect, the plaintiff must show that the defendant failed
to act reasonably. Whether
the risk was made clearly known to the plaintiff is the most important
evidence in determining whether a product supplier adequately warned
of the risk. In many cases, Gray being an example, the question is not whether the product supplier
warned at all, but whether she warned adequately. A plaintiff should, therefore, focus on evidence
that tends to show that a reasonable supplier in the defendant’s position
would have foreseen the need to warn even more clearly and unambiguously
about the risk of harm and that the supplier’s warning was inadequate. Evidence about the nature and extent of warnings
given by suppliers of similar products, or evidence of any industry
standards or customary practices respecting the provision of information
or warnings, is important to both parties.
In
cases like Gray, where there
is an intermediary between the defendant supplier and the plaintiff,
the plaintiff should try to show that the supplier failed to adequately
inform the intermediary of product-related risks and that the intermediary’s
knowledge of the product’s risks was, therefore, inadequate to shift
the responsibility for warning the plaintiff from the supplier to
the intermediary. The defendant should try to develop evidence
tending to show that the intermediary was a “sophisticated intermediary”
who was sufficiently aware of the risk to the plaintiff and who could
reasonably be relied upon to convey to the plaintiff warnings about
that risk. Evidence that it was difficult or impractical
for the defendant to directly warn the plaintiff helps to provide
the basis for a defense argument that, though there was a duty to
warn, it was not negligent for the defendant to rely on the intermediary
to provide that warning. Conclusion Gray v. Badger Mining Corporation
represents an effort by the Minnesota Supreme Court to restate and
clarify many aspects of the law relating to product liability failure-to-warn
cases. It may, however, have also unintentionally provided
the basis for the argument that it has generally broadened the scope
of a product supplier’s duty to warn.
The Court’s opinion emphasizes the critical importance of the
various parties’ knowledge of product-related risks on the issues
of duty and negligence, and provides useful guidance to lawyers regarding
the kinds of evidence necessary to support their arguments on these
issues. NOTES 2
See Restatement (Third) of Torts:
Products Liability (1998).
Section 2 of the Restatement says that a product “is defective
because of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided
by the provision of reasonable instructions or warnings . . . and
the omission of the instructions or warnings renders the product not
reasonably safe.” 3 676 N.W.2d 268 ( 4
The Court of Appeals analyzed the case strictly as a negligence claim. The Supreme Court specifically considered only
Gray’s negligence claim and deferred for another day the issues related
to the strict liability and warranty claims that had been alleged. Gray at 273. 5 669 N.W.2d 389 (Wisc. App. 2003). Subsequently, the Wisconsin Supreme Court also
dismissed Haase’s strict liability claim,
concluding that the plaintiff had failed to prove that sand, the defendant’s
product, was “unreasonably dangerous” under §402A of the Restatement
(Second) of Torts. Haase v. Badger Mining Corp., 682
N.W.2d 389 (Wisc. 2004). 6 319 F.3d 350 (8th Cir. 2003). 7 Gray at 271. 8 Gray at 281-82. 9 Gray at 274. 10 11
See Karjala v. Johns-Manville Prods. Corp.,
523 F.2d 155, 159 (8th Cir. 1975) (applying 12
See, e.g., Germann, supra note 1. 13
Kallio v. Ford Motor Co., 407 N.W.2d 92,
99 (Minn. 1987) (adequate warning must not only tell the product’s
user (1) how to safely use the product, but also (2) the consequences
of failing to follow the manufacturer’s instructions). 14
Risks not reasonably foreseeable at the time a product is sold but
which manifest themselves later may give rise to a post-sale duty
to warn. See, e.g., Hodder
v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 ( 15 See, e.g., Mix v. MTD Products, Inc.,
393 N.W.2d 18 (Minn. App. 1986). However, in a design defect case, the obviousness
of the risk does not necessarily absolve a product manufacturer of
a duty to design the product differently.
The obviousness of the risk is simply one factor to consider
in determining whether the design was defective or whether the manufacturer
was negligent for designing the product as it was designed. See Holm v. Sponco
Mfg., Inc., 324 N.W.2d 207, 212 ( 16
See Gray at 279. 17 Gray at 275. The
Court’s opinion also discusses the learned intermediary, sophisticated
user, bulk supplier; and raw material/component part supplier defenses. 18 19 Gray at 278. 20 Gray at 279. 21 22 Gray at 279. But
see infra, “Relative Knowledge of the Parties.” 23
Supra note 5. 24
Supra note 6. 25 Gray at 277. 26 27 Gray at 281. 28 Gray at 275. J.
DAVID PRINCE is a professor of law and former vice dean at William
Mitchell College of Law. He
teaches in areas of torts, toxic torts, and products liability law. |
