A legal guessing game: does U.S. common law require manufacturers and suppliers of consumer products to warn in languages other than English?

• Author: Luck, David L.

OVER the last 30 years, the United States has become increasingly diverse. (1) In turn, this increased cultural variety--much due to immigration--has coincided with a rise in the number of households that speak primary languages other than English. (2) According to U.S. Census Bureau estimates, while approximately 80% of American households still speak English only, 12.8% speak Spanish, and 7.8% speak a foreign language other than Spanish. (3) Further, members of almost 9% of American households report speaking English less than "very well." (4) Estimates vary, but it appears relatively clear that well over 100 languages are spoken in the United States. (5) Nevertheless, the dominant and de facto common language of the United States remains English, which is recognized as the official language of over 30 states, including states with large Hispanic populations like California and Florida. (6)

Why is this background significant when discussing product liability issues? Failure-to-warn theories of liability are a regular feature in these lawsuits, (7) and as the percentage of the U.S. population that do not speak English with fluency rises, it is probable that so too will the number of cases in which plaintiffs premise liability on an alleged failure to warn in their native languages. Specifically, with regard to Spanish, at least one legal scholar would like to provide plaintiffs with three "hooks" on which to premise alleged warnings liability: (1) the product was sold or used in a geographic area of dense Hispanic population; (2) the product has been marketed toward Hispanics through Spanish-language media; or (3) the product is used in an industry with a large percentage of Hispanic workers (e.g., unskilled agricultural or industrial jobs). (8)

As discussed below, it remains to be seen whether U.S. common law imposes a general duty on consumer product manufacturers and suppliers to warn in languages other than English, particularly where the product is marketed in English and sold on a national basis, and where the manufacturer(s) and supplier(s) do not target minority-language groups. (9) The Restatement (Third) of Torts: Products Liability does not directly address the issue of foreign-language warnings; although, in assessing the reasonableness of a particular warning, it does discuss as relevant factors "comprehensibility" and "the characteristics of expected user groups." Specifically, section 2(c) and its comments exemplify the usual common-law rule used to assess the adequacy of consumer product warnings:

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 by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. Product warnings and instructions can rarely communicate all potentially relevant information, and the ability of a plaintiff to imagine a hypothetical better warning in the aftermath of an accident does not establish that the warning actually accompanying the product was inadequate. No easy guideline exists for courts to adopt in assessing the adequacy of product warnings and instructions. In making their assessments, courts must focus on various factors, such as content and comprehensibility, intensity of expression, and the characteristics of expected user groups. (10) In many economic endeavors-including the manufacture, sale, and support of consumer products-consistency and predictability in the rules of the market are often essential to attaining preferred outcomes. (11) Unfortunately, extant U.S. case law addressing if and when product manufacturers and suppliers are required to provide bilingual or multilingual product warnings does not lend much certainty for those seeking a clear compliance strategy. (12)

1. Existing Precedent

   The body of reported case law addressing an alleged failure to warn in a foreign language is relatively sparse, and many of these cases come from federal district courts, not state or federal appellate courts. (13) Recently, federal district courts sitting in Florida have taken center stage in addressing this issue. (14) While the trend appears to be that the provision of product warnings in a foreign language will generally not be required, there might still be certain situations under which a product manufacturer or supplier has assumed a duty to provide such warnings (in addition to English-language product information). For example, when the manufacturer or supplier has engaged in concerted product advertising in the given foreign language--thereby targeting consumers that the manufacturer or supplier knows do not speak English well or at all--the court might allow a foreign-language warnings claim to proceed to the jury for its consideration. (15)

   Farias v. Mr. Heater, Inc. (16) is the most recent case to address whether product manufacturers and suppliers owe a duty to warn in a language other than English. (17) There, during an unusually cold winter for South Florida, a naturalized U.S. citizen originally from Cuba, who spoke Spanish but little English, decided to purchase space heaters for use in her Miami home. (18) To do so, she visited a national retailer, where she purchased two outdoor, propane-fired heaters. (19) These heaters were designed and manufactured in Ohio and sold throughout the United States. (20) The accompanying packaging, labeling, and instructions were in English only. (21) Further, the retailer and manufacturer had not advertised the product in a language other than English and did not otherwise target any minority-language group for sales of the subject product. (22)

   Despite recognizing that the heaters included product warnings regarding potential dangers, the woman failed to discover the subject of these English warnings by having someone translate them for her. (23) Instead, she relied on six labeled illustrations appearing on the side of the product box that depicted potential product use in well-ventilated areas--"Loading Docks," "New Construction," "Warehouses," "Splitting Wood," "Patios," and "Home Auto Repair"--to reach the conclusion that it was safe to use the heaters inside her home. (24) None of these illustrations depicted product use inside a dwelling, and, further, the heaters' packaging and owner's manual warned that the product was for outdoor use only and that improper use inside a dwelling or other enclosed space risked death or serious injury due to fire, burn, explosion, and asphyxiation. (25)

   That night, the woman used the heaters inside her home, and one of the heaters ignited her living room sofa. As a result, her residence suffered severe fire and smoke damage, but, thankfully, the woman exited uninjured. (26) After her first-party property insurer reimbursed her for the damage to her home, the insurer brought a products liability/subrogation suit in the woman's name against the retailer and manufacturer. The suit sounded in negligence and strict liability, with the primary allegation being a failure to warn in Spanish. (27) The defendants later moved for summary judgment, inter alia, based on the contention that Florida did not impose a general duty to provide Spanish-language warnings with consumer products sold in the state. (28) The district court agreed, and, in the process, distinguished and questioned the validity of a potentially contrary decision issued nearly two decades earlier by the same court: Stanley Industries, Inc. v. W.M. Barr & Co., Inc. (29)

   Specifically, the Farias court distinguished and limited Stanley to situations in which the defendant engages in Spanish-language product marketing but then fails to provide Spanish instructions and warnings with the product. Agreeing with and relying on an earlier case from the Middle District of Florida, Medina v. Louisville Ladder, Inc., (30) the Farias court reasoned as follows:

   ... [S]ince Stanley ... was decided, not one published Florida case in either federal or state court has relied on the decision to conclude that bilingual warnings and instructions may be necessary under Florida law .... IT]here is no indication that Florida law imposes a duty on manufacturers and sellers to provide bilingual warnings on consumer products.... It would therefore be...