Who Knew? Refining the "knowability" Standard for the Future of Potentially Hazardous Technologies

• Citation: Vol. 9 No. 4
• Publication year: 2014

Washington Journal of Law, Technology and Arts Volume 9, Issue 4 Spring 2014

Who Knew? Refining the "Knowability" Standard for the Future of Potentially Hazardous Technologies

Scott P. Kennedy(fn*) © Scott p. Kennedy

ABSTRACT

As consumer technology becomes increasingly complex, so too does the manufacturer's task in assessing the scope of its duty to warn of potential dangers. A recent decision by the United States Court of Appeals for the Ninth Circuit, Rosa v. Taser International, Inc., offers a prime illustration of this challenge through its analysis of a hazard posed by Taser weaponry. The Rosa court highlights a point of uncertainty in this area of law: courts typically determine which hazards were knowable at the time of manufacture as a matter of law, but they sometimes do so in the absence of a comprehensive standard.

This Article evaluates the Ninth Circuit's approach as a potential model for other courts. After a brief survey of U.S. products liability law pertaining to the "knowability" requirement, this Article analyzes the Rosa decision. Although the Rosa court bemoans the absence of a comprehensive standard for making this determination in California, the court's reasoning implicitly suggests a three-part test that could serve as a model in California and elsewhere. Such a standard would reduce the legal uncertainty faced by manufacturers assessing the extent of their duty and by plaintiffs assessing the strength of their claims.

TABLE OF CONTENTS

Introduction..................................................................................268

I. Products Liability and the Duty to Warn..............................270

A. The Duty to Warn of a Product's Dangers......................271

B. Known or Knowable Dangers..........................................272

1. The Requisite of Knowability................................272

2. Jurisdictions Rejecting the Knowability Requirement...........................................................275

3. Knowability as a Question of Law.........................277

II. The Lessons of Rosa v. Taser International.........................277

A. Determining Knowability in the Absences of a Comprehensive Standard...............................................277

1. Lack of a Comprehensive Standard.......................278

2. Assessing the State of the Art Through Contemporaneous Research...................................281

3. The Rough Contours of a Standard Emerge...........282

B. Rejecting the Duty to Test...............................................282

III. Recommendation: A Three-Part Standard for Determining Knowability ..........................................................................283

Conclusion...................................................................................285

Practice Pointers...........................................................................285

INTRODUCTION

Late on August 29, 2004, local police in Del Rey Oaks, California, responded to a call reporting a disturbed wanderer; his name was Michael Rosa.(fn1) After a tense confrontation in which he threatened police, Mr. Rosa fled.(fn2) The pursuit ended only after police deployed their Taser stun guns, and it took seven or eight shocks to immobilize Mr. Rosa, perhaps because he was under the influence of methamphetamines.(fn3) Mr. Rosa stopped breathing and was transported to a hospital, where he died of cardiac arrest.(fn4) The physician who performed his autopsy listed "ventricular arrhythmia . . . due to methamphetamine intoxication" as the cause of death, adding "Taser application and arrest by police" as a contributing cause.(fn5) However, Mr. Rosa's death was later linked to metabolic acidosis, a condition in which extreme physical exertion causes lactic acid to accumulate in the muscles more quickly than the body can dispose of it.(fn6) The condition makes cardiac arrest more likely.(fn7)

Mr. Rosa's family sued the stun gun's manufacturer.(fn8) When their case reached the Ninth Circuit Court of Appeals, the court held that any risk of acidosis posed by the Taser weaponry had not been knowable at the time of manufacture, thus relieving its manufacturer of liability for Mr. Rosa's death.(fn9)

In all but a handful of states, a products liability action claiming a manufacturer failed to warn of its product's hazards would not succeed unless those hazards were known or knowable at the time of manufacture. Determining whether a risk is or was knowable can be a challenge for litigants and courts. That challenge promises to become greater with the addition of complex new technologies to a marketplace already crowded with undiscovered hazards. The court's opinion in Rosa forthrightly acknowledges this problem: it assessed the knowability of the Taser's risks in the absence of a comprehensive legal standard. However, this Article argues that an analysis of Rosa's reasoning offers insight into what form a standard might ultimately take.

Part I briefly surveys U.S. products liability law pertaining to the duty to warn. Part II analyzes the Ninth Circuit's decision in Rosa as an illustration of the problems involved in assessing knowability. It then discusses Rosa's potential relevance to the development of a comprehensive standard. Finally, Part III offers a recommendation: the Rosa court's rationale implicitly suggests a three-part standard for determining a risk's knowability as a matter of law that courts would do well to adopt.

I. PRODUCTS LIABILITY AND THE DUTY TO WARN

Products liability constitutes a relatively recent development in U.S. jurisprudence,(fn10) and its common law evolution produced several claims rooted in different theories of recovery. A cause of action for products liability may be pursued under any of three basic theories of tort law: negligence, strict liability, or breach of warranty.(fn11) Although the rationale and elements of each vary, these theories all require some proof that a product is defective.(fn12) The nature of that defect can take several different forms: it might be a mistake in manufacturing, a deficiency of design, or a failure to adequately instruct about proper use or warn of potential risks.(fn13) These alternate forms of defect provide plaintiffs with a variety of claims through which to impose liability.

This Article is primarily concerned with claims directed at a manufacturer's failure to warn. Both negligence and strict liability theories give rise to a manufacturer's duty to warn of a product's dangers, but the plaintiff's choice of theory makes little difference, as the standard for determining liability is similar under both.(fn14) Therefore, this Article will sometimes refer to the duty to warn without distinguishing between the two theoretical forms it may take.

A. The Duty to Warn of a Product's Dangers

Manufacturers and suppliers are subject to a duty to warn consumers if a failure to do so could render their products defective or unreasonably dangerous.(fn15) This duty may be imposed where a product is latently defective, dangerous for its intended use, or inherently dangerous.(fn16) If its product meets any of these criteria, a manufacturer breaches its duty if it either fails to warn entirely or if its warnings are inadequate.(fn17) Judging the adequacy of warnings, in turn, is a task for the trier of fact. using a standard of reasonableness, the trier of fact must determine whether the warning was sufficiently specific and explicit to communicate an awareness of the relevant danger to the product's typical consumer.(fn18)

However, even where a product proves to be dangerous, the duty to warn of that danger has limits. Manufacturers are not obliged to educate ignorant consumers of inherent dangers that would be obvious to the typical user,(fn19) so a knife maker need not warn consumers about a cutting hazard. A manufacturer is also under no duty to warn of non-obvious dangers if the manufacturer itself had no way to foresee the danger at the time of sale-the so-called "knowability" requirement.(fn20) But determining precisely what this latter requirement means for manufacturers, and for plaintiffs, can be difficult.

B. Known or Knowable Dangers

It is not uncommon for a product to enter the marketplace without warnings only to have a hazard become apparent after widespread use. In such a case, the majority of courts will hold a manufacturer liable for its failure to warn only if the hazard was either known or knowable to that manufacturer at the time of sale.(fn21) Whether the danger was known to the manufacturer is a simple question, at least conceptually: a known danger implies actual knowledge and can be shown through evidence that a manufacturer was aware of the specific danger but negligently or willfully disregarded that knowledge.(fn22) Determining what was knowable to the manufacturer is more complex. Whether a danger was knowable amounts to a question of whether the manufacturer had constructive knowledge of that danger, implying that it should have known.(fn23)

1. The Requisite of Knowability

In most jurisdictions, showing that a danger was knowable is really a question of whether it was actually known to experts in the field.(fn24) Put another way, if the "state of the art" was such that science had not discovered the problem, a manufacturer will generally not be held responsible.(fn25) For instance...