Guide to defeating the heeding presumption in failure-to-warn cases: Defense counsel must oppose the distortion of Comment j's language into a presumption that users would read and heed instructions.

• Author: Daniel, Carrie A.

IN FAILURE-TO-WARN products liability cases, plaintiffs traditionally have been required to prove that defendants placed a product on the market without adequate warning or instruction, and that this failure to warn was a proximate cause of their injuries. One link in establishing causation is showing that had a warning been given, the plaintiff would have read and heeded the warning, thereby averting injury.

A common issue is which party has the burden of proving that the plaintiff would have read and heeded a warning. A number of courts have decided the issue to the benefit of defendants by requiring plaintiffs to prove they would have read and heeded a warning as part of their prima facie case. On the other hand, some jurisdictions have decided the issue in favor of plaintiffs by invoking a presumption, colloquially known as the "heeding presumption," that they would have read and heeded a warning, thus shifting the burden to the defendant to rebut. Yet, other courts have not directly addressed the heeding presumption issue.

This article navigates defense counsel through all aspects of the heeding presumption to arm them to oppose the heeding presumption. It takes a national perspective and looks at the heeding presumption across U.S. jurisdictions.

HEEDING PRESUMPTION

1. Basic Principles

   Under products liability law, there is a presumption that if a product comes with a warning, the user will read and heed the warning. (1) This presumption operates to the benefit of the manufacturer or seller where adequate warnings are given because the manufacturer receives the benefit of the doubt that the warning it provided is effective in alerting the user of the product's potential danger. If no warning is given, however, the presumption works in favor of the plaintiff because causation is presumed. (2) This heeding presumption is now the majority rule, with the effect that plaintiffs are relieved of the burden of proof on the element of causation in a warning claim. Not all courts, however, choose to recognize the heeding presumption.

   Once the presumption arises, the defendant-manufacturers may rebut it with evidence that plaintiffs would not have heeded the warning. They may provide evidence to show that plaintiffs would have proceeded voluntarily and subjected themselves to harm. (3) The purpose of rebuttal is to create a jury question as to whether a plaintiff is the type of person who ordinarily would not follow warnings. (4)

   A New Jersey court suggested two methods for rebutting the heeding presumption. (5) First, the manufacturer can offer evidence of the plaintiff's knowledge of the risk, which suggests that the plaintiff chose to face the risk knowingly and voluntarily. Second, the manufacturer can introduce evidence of the plaintiff's attitudes and conduct, which may include habit evidence or evidence that the plaintiff is blind, illiterate or even was intoxicated, thus was unable to read or heed the warning. (6)

   Generally, if the defense fails to meets its burden, the plaintiff has made a prima facie case of causation. If the defense meets the burden, then some courts say the heeding presumption disappears, while others hold that the burden shifts back to the plaintiff. (7) Defense counsel must be alert to the practical evidentiary effect of failing or meeting its burden, which is discussed in more detail below.

2. Practical Effect

   Defense counsel must be prepared for the procedural and evidentiary scenario they will face when the heeding presumption arises. A modest amount of literature addresses the practical situation that arises when a court recognizes the heeding presumption, and few cases discuss the evidentiary and procedural ramifications. It is clear, however, that defense counsel must be aware that the heeding presumption acts as a substitute for evidence in a death case, but not in an injury case. The defense is much more likely to prevail in a non-death case because the defense may actually have some evidence with which to rebut. (8)

   The heeding presumption's evidentiary and procedural effect is simple in a death case: it acts as a substitute for evidence that the decedent would have read and heeded the warning. (9) Because decedents cannot provide testimony, and presumably no eyewitnesses exist, the presumption acts as an alternative source of evidence. Direct evidence that a decedent would have heeded adequate warnings is no longer an "essential element of the plaintiffs' case," and "jurors are entitled to bring to their deliberations their knowledge of the `natural instinct' and `disposition' of persons to guard themselves against danger." (10)

   The situation is more complicated when there is a live plaintiff able to testify. Courts have applied varied approaches. Some still require plaintiffs to bring forth some evidence that they would have read and heeded the warning, because if they do not, defendants typically are able to offer evidence to the contrary. (11) Many courts hold that if the heeding presumption is negated by rebuttal evidence, the presumption "disappears," and plaintiffs are held to their original burden of persuasion on proximate cause. (12) The evidence is then evaluated as it normally would be with the presumption having no effect on the burden of persuasion as a whole. (13) A number of courts allow the presumption only where plaintiffs show they were unaware of the danger posed. (14) One court has held that the jury should not be instructed on the presumption unless the plaintiff is dead or unavailable at trial, and that the jury instead should be instructed in terms of a "permissible inference," so that there is a fair substitute for the jury's lack of opportunity to assess the credibility of a live plaintiff. (15)

   Despite these varied approaches, courts are less likely to allow the heeding presumption to be complete substitute evidence where the plaintiff is available to provide evidence. Instead, the defense simply first introduces evidence on the issue of whether the plaintiff read and heeded instead of the plaintiff introducing evidence. Defense counsel is more likely to prevail where some evidence is admitted because it has something against which to rebut. Defense counsel must then be aware of whether the jurisdiction allows the heeding presumption to disappear, which requires the plaintiff to establish a prima facie case of causation, or whether the burden simply shifts back to the plaintiff. That burden is more difficult to meet if the presumption disappears because plaintiffs need more evidence to establish a prima facie case than they need to rebut.

   HISTORY AND DEVELOPMENT

   Understanding the heeding presumption's roots is essential to arguing successfully against its recognition, because courts still rely on the traditional reasons on which the presumption was initiated.

1. Seminal Case

   Technical Chemical Co. v. Jacobs, decided by the Texas Supreme Court, is a landmark case that first considered a heeding presumption. (16) The plaintiff deposited freon from a can of refrigerant into his car's air conditioning unit. He mistakenly attached the can's hose to the high-pressure side of the compressor instead of the low-pressure side. The can exploded and he sustained bodily injuries. There was no warning on the can.

   The court analyzed Section 402A of the Restatement (Second) of Torts, Comment j, and construed its language to recognize a presumption that the plaintiff would have read an adequate warning, despite the fact that no warning existed. The court went on to say that the manufacturer could rebut the presumption with contrary evidence, such as the plaintiff's blindness, illiteracy, intoxication, irresponsibility or some other circumstance indicating that the presumed fact did not exist. The court then stated the jury could have concluded in this situation that the plaintiff would have disregarded a warning. One witness testified that the plaintiff did not read the label before the explosion, despite the plaintiff's testimony to the contrary. Thus, no causation existed, and the manufacturer prevailed.

   Numerous jurisdictions have cited Technical Chemical since it first recognized a heeding presumption. (17) Many courts have relied on the decision as authority to invoke the heeding presumption, while others, including many commentators, have adamantly criticized its reading of Comment j as "defying logic." (18)

2. Bases for Presumption

   Courts typically chose one of two, sometimes both, bases as authority for adopting the heeding presumption: the Restatement and/or public policy.

   1. Restatement

      Numerous states find a basis for the heeding presumption in the Restatement. Section 402A, now superceded by the Restatement (Third), provided for strict liability for sellers of products that physically harmed consumers. Comment j, entitled "Directions or warning," reads in part:

      Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe if it is followed, is not in defective condition, nor is it unreasonably dangerous. Courts--for instance, Technical Chemical--have interpreted this statement to mean that even where there is no warning, there is a presumption that the user would have read an adequate warning. They hold that this interpretation is a "logical corollary" to the express text. This presumption clearly favors the plaintiff by easing the burden of proof on causation. Some states that have adopted the Comment j basis for the heeding presumption include Alabama, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Missouri, North Dakota, and Ohio. (19)

      Most of these cases use the Restatement comment as a basis for the heeding presumption with...