Effective communication of warnings in the workplace: avoiding injuries in working with industrial materials.

AuthorSchwartz, Victor E.

    A principal purpose of product liability is to provide incentives for increasing product safety and better informing consumers, workers, and other end-users so that they may avoid potential hazards. To meet this goal, the law generally places liability on the entity best able to prevent the potential harm posed by a product. (1) Product warnings offer a relatively low cost means of informing the product's user of potential hazards--in effect, recasting the user as the least-cost avoider of injury. (2) Because there may be many risks associated with a product's use, some more probable or more serious than others, and because users have limits on what they will read and remember, sound product liability law delicately balances the practicality and comprehensiveness of warnings. This balance furthers the overriding policy objective of preventing harm to the product's user. It also indicates who should bear responsibility for communicating warnings. (3) In many instances, the product liability system appropriately and efficiently allocates liability; however, sometimes it proves ineffective in cases involving industrial materials, such as chemicals, metals, sand or plastics, which can have numerous uses in the workplace and are incorporated into various products. Courts, in some instances, have held manufacturers and suppliers of such raw materials liable for warning end-users to the same degree as manufacturers of consumer products. (4) This has occurred despite considerable differences in the ability of these manufacturers and suppliers to effectively warn end-users.

    For example, courts have held bulk manufacturers of liquid propane liable for failing to warn consumers of the risks associated with an additive used to detect propane's smell when that additive is introduced and mixed by an intermediary. (5) Industrial suppliers have been held liable when, after shipping their product by the carload, the purchaser's individual drums used to store the product did not contain adequate warnings. (6) Chemical manufacturers have even been held liable to consumers for defective warnings when their product is incorporated into other products to formulate different substances. (7)

    Unlike manufacturers and suppliers of typical consumer products, those who make and sell industrial materials often do not have full knowledge of the purchaser's intended use of their products. (8) Indeed, these manufacturers and suppliers may not even be able to ascertain what their product will ultimately become or who the end-user will be. (9) Industrial materials regularly travel through intermediaries and can be sold like commodities, increasing the disconnect between manufacturer or supplier and the end-user. (10) Even when sold to a particular industry, the materials can end up as part of a product that the original manufacturer or supplier could not have reasonably predicted. (11) Health risks associated with some industrial materials can also vary according to the state of the product at a given time or point in the supply chain. (12) Silica sand, for example, typically does not pose a health risk as sold, but can pose a health risk to workers if reduced to a respirable state during manufacturing and the employer does not provide employees with proper protective equipment. (13)

    This Article provides a guide for participants in the supply chain to communicate product risks in the most effective manner to prevent injury where prevention is possible. It suggests how liability rules should be congruent with this same public policy goal. Part II of the Article details the special challenges inherent to effectively warning users of the potential dangers posed by industrial products, while Part III sets forth criteria for meeting these challenges in the workplace. Part IV considers the development of the law in industrial product warnings. Part V then analyzes workplace safety under the current liability structure, and recognizes that warnings are not the end-all, be-all for worker safety. Finally, Part VI examines the responsibilities of the relevant parties to maintain effective communication and prevent workplace injury.

    The Article concludes that placing a duty to warn on raw material manufacturers and industrial suppliers regarding the potential dangers associated with the varied conceivable end uses of their products is both inefficient and impractical. Of equal importance, such an obligation subverts the goal of effectively educating the end-user of the product so that he or she avoids in jury. Injury prevention through effective warnings may also not be attainable in certain applications where proper training and safety equipment are essential. Existing legal principles, such as the sophisticated user, bulk supplier, learned intermediary and substantial change doctrines, recognize the importance of placing the responsibility of developing and communicating warnings with the party that is in the best position to do so. (14) In the context of workplace hazards, that party is most often the employer. (15) Thus, where the workers' compensation system, and its incident-based premiums, place responsibility on employers to protect their employees from hazards related to industrial materials, the product liability system should, in turn, avoid placing manufacturers and sellers of the materials in a position where they are compelled to provide redundant, incomplete, speculative, conflicting, or otherwise ineffective warnings.


    Differences in industrial materials compared with ordinary consumer products justify distinct treatment with regard to product warnings. Manufacturers and suppliers of industrial products do not, and, from a practical standpoint, cannot know all of the end uses of their products. (16) They also cannot exercise control over the use of products in the purchaser's workplace. (17) Industrial products, unlike consumer or other workplace products, are commodities, and in a commodity marketplace, the potential end-user may change multiple times. The product could be anything that incorporates the industrial material. In this environment, product packaging, labels, or inserts cannot reasonably be expected to effectively address all of these possibilities with a "one size fits all" warning. (18) Furthermore, subsequent packaging changes in industrial products before they reach an intermediary or end-user may lead to the loss of warnings originally provided with the product. (19) Without proper training and equipment, use of the product may also be unsafe regardless of the warnings provided to users. Hence, the reality of industrial products is that they share little in common with the ordinary consumer products that product liability law seeks to safeguard through conspicuous warnings. (20)

    The traditional process by which an industrial supplier enters the supply chain is through shipment of material in barrels, vats, containers or railcars. The purchaser refines, incorporates, or otherwise uses the industrial material to make a product. In the absence of further transactions, the purchaser's employees represent the end-user of the material. In order to be effective, warnings related to industrial materials must, therefore, reach these employees and communicate potential hazards related to their intended use. (21)

    Existing barriers, however, prevent consistency in or reliance on this method of injury prevention. As many courts have recognized, industrial material suppliers do not always know, nor are they able to predict, the end use of their product. (22) This stems from considerations such as new technology developments, the purchaser's desire to protect trade secrets, changes in demand causing purchasers to sell off bulk inventory, and the existence of middlemen along the production cycle. (23) With changes in use come changes in risks. A material that is not inherently dangerous could become dangerous through the refinement process or when used in an unexpected way. (24) For example, Teflon is not an inherently dangerous substance and is used in a range of products including jet aircraft bearings, pipe lining, solar collectors, submarine piston rings, and, most commonly, nonstick coating for cooking pans. (25) Yet when incorporated into certain medical implants, it can create a risk of harm. (26) Warning of the dangers associated with every narrow, limited use of Teflon or a similar industrial material would place an "onerous burden" on the supplier and likely lead to "severe enforcement problems." (27) Conversely, a general warning could prove ineffective or misleading given the spectrum of completely benign applications to exceptionally dangerous ones.

    An issue tied to the uncertainty of an industrial material's use is the manufacturer's lack of control. By not necessarily knowing what the finished product is or who the end-user will be, industrial product manufacturers have little control over how their product is used in the workplace. They are not in a position to evaluate employer warnings, supply employee training and procedures, or oversee the adequacy of a facility to prevent harm to workers beyond their view and direction. (28) Consideration of these factors is especially important if the material is inherently dangerous. Moreover, when it comes to some materials in the workplace, even the most effective warnings may not be enough to protect workers. Chronically toxic substances require proper safety devices such as respirators, radiation monitors, or protective clothing for use under any circumstances, and exposure to such chemicals frequently results in litigation. (29) Inadequacies in this employer-issued equipment could render any supplier-issued warning insufficient. (30)

    Even in the case where the industrial material manufacturer or supplier knows both the finished product and the end-user...

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