The duty to warn - a matter of reasonableness, not arbitrariness.

• Author: Stewart, Larry S.
• Position: Florida

In the January 1999 issue of The Florida Bar Journal, "Welcome the `Sophisticated User Doctrine,'" Gene Kissane and Michael Metta advocate that the courts or the legislature adopt a new "complete defense" for product manufacturers who either provided warnings to sophisticated purchasers or an opportunity to inspect products built to the purchasers' specifications. Their proposal is based mainly on the so-called "sophisticated user doctrine" as derived from Restatement (Second) of Torts [sections] 388, comment n. Notwithstanding some courts' faulty interpretations, the principles at issue are not a defense, however, but only a means for analyzing the reasonableness of a lack of warning to product end-users. Hopefully the legislature will not and courts should not heed their call because what has been proposed obfuscates and confuses the law; would substitute arbitrariness for reason; and would be bad policy.

The authors claim that a new defense is needed because current law is "ill-equipped" to protect "innocent" manufacturers who gave "legally sufficient warnings." Supposedly these defendants are being "ravaged" by "unjustified" claims brought by employees who "misused" products. A moment's thought exposes the hollowness of such advocacy. Innocent manufacturers do not need to give any warnings; legally sufficient warnings will not support liability; misuse already is a products liability defense;[1] and remedies already exist for frivolous lawsuits.[2] Beyond that, the specter of manufacturers being ravaged by hordes of unjustified claims--a part of standard industry propaganda--has been thoroughly discredited by empirical studies of the civil justice system which all show that product liability filings are drastically down, plaintiff win rates are plummeting, and verdicts are not rising. Indeed, present day products liability litigation is one of the most difficult claims that can be made by an injured party.[3]

Aside from no demonstrable need for a new defense, the article's arguments also do not stand up to substantive analysis. Fundamental principles concerning the reasonableness of a warning are confused with when a warning is required; established law is overlooked; and arguments appear to be result driven. The linchpin of Kissane and Metta's argument is that for defensive purposes all product liability cases should be categorized into one of two classes of users, "sophisticated" and unsophisticated users. They get to this remarkable point by a curious, illogical process. First, they claim that there is a threshold question present in every products liability case which often is overlooked but which the courts should recognize. It is whether a product is "unreasonably dangerous" or "potentially dangerous for its intended use." While a potential danger during use could theoretically never be realized, both conditions expose the user to danger and, if not corrected or warned about, can result in harm. Nonetheless, this "distinction" between products is then used as the basis for a leap from product categorization to a "distinction" based on type of user. The authors have to make this leap because they mistakenly believe that under the general rules concerning warnings contained in Restatement (Second) of Torts [sections] 388, the classification of the purchaser[4] dictates when an end-user must be warned of product dangers and those rules are different than the rules for products liability. The authors finally conclude that [sections] 388 should apply to product manufacturers, that in the case of "sophisticated" product purchasers there should be no duty to warn end-users and, therefore, a finding of a "sophisticated user" should be a complete defense in all product liability cases. This reasoning represents a fundamental misunderstanding of the Restatement as well as when a duty to warn exists, how the scope of that duty is to be measured.

The duty to warn arises from the obligation to exercise reasonable care. When one supplying a product knows (or should know) of danger in the use of the product, a duty to warn users of such danger arises. This is a duty owed not just by manufacturers, but all suppliers, and it is not based on the characterization of the product or the classification of the user. Restatement (Second) of Torts [sections] 388 et seq.[5] Florida has expressly adopted [sections] 388, Sowell v. American Cyanamid Co., 888 F. 2d 802 (11th Cir. 1989); Square D Co. v. Hayson, 621 So. 2d 1373 (Fla. 1st DCA 1993).

Analysis of the duty to warn required under [sections] 388 becomes more complex when a product is supplied to or purchased by someone who then furnishes it to the ultimate user. In such cases, a question can arise as to what conduct suffices to satisfy the duty to warn.[6] In many cases it will be practical, feasible, and necessary to warn the end-user of danger. In other cases, circumstances may exist making it reasonable for the product supplier to rely on others to convey the warning, such as where the purchaser is a so-called "sophisticated user." Section 388, comment n[7] makes clear, however, that in all cases a warning must be given, the focus remains on the conduct of the supplier, and a balancing test is used to assess the reasonableness of the scope of the warning. A variety of...