Section 15.17 Failure to Warn as a Defect

• Library: Tort Law 2016

C. (§15.17) Failure to Warn as a Defect

"Failure to warn" is a cause of action in a strict products liability case in Missouri. Sperry v. Bauermeister, Inc., 804 F. Supp. 1134, 1140 (E.D. Mo. 1992); Racer v. Utterman, 629 S.W.2d 387, 393 (Mo. App. E.D. 1981). To recover under this theory, the plaintiff must establish that:

· the defendant sold the product in the course of business;

· the product was unreasonably dangerous when put to a reasonable use without knowledge of its characteristics;

· the defendant did not give an adequate warning of the danger;

· the product was used in a manner reasonably anticipated; and

· the plaintiff was damaged as a direct result of the product being sold without an adequate warning.

Nesselrode v. Exec. Beechcraft, Inc., 707 S.W.2d 371, 382 (Mo. banc 1986); MAI 25.05 [1978 New]. For general failure-to-warn cases, see:

· Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011)

· Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 785 (Mo. App. W.D. 2008)

· Tune v. Synergy Gas Corp., 883 S.W.2d 10 (Mo. banc 1994)

· Nesselrode, 707 S.W.2d 371

· Cole v. Goodyear Tire & Rubber Co., 967 S.W.2d 176 (Mo. App. E.D. 1998)

See also Bachtel v. TASER Int’l, Inc., 747 F.3d 965 (8^th Cir. 2014); Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862 (8^th Cir. 1999).

Although a product is no less dangerous because a warning is given, the existence of a warning may prevent the product from being unreasonably dangerous because warnings and directions concerning the proper use of a product and the consequences of misuse operate to lessen the level of risk inherent in the product’s use. See Nesselrode, 707 S.W.2d at 382. The seller may, therefore, be required to give directions or provide a warning on the container or product itself as to its use to prevent the product from being unreasonably dangerous. Racer, 629 S.W.2d at 393; see also RESTATEMENT (SECOND) OF TORTS § 402A cmt. j (1965); Church v. Martin-Baker Aircraft Co., 643 F. Supp. 499, 508–09 (E.D. Mo. 1986). But a manufacturer has no duty to warn of dangers resulting from uses neither intended nor reasonably anticipated. Baker v. Int’l Harvester Co., 660 S.W.2d 21, 23 (Mo. App. E.D. 1983). When an adequate warning is given, the seller may reasonably assume that it will be read and heeded. "[A] product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." RESTATEMENT (SECOND) OF TORTS § 402A cmt. j; R...