Limiting manufacturers' duty to warn: the sophisticated user and purchaser doctrines.

• Author: Sungaila, Mary-Christine

THE coffee cup says "Caution: Contents may be hot. The ladder decal says "Danger: Do not stand on top platform. You may fall." The baseball bat wrapper says "Warning: This bat should hOt be used for any purpose other than hitting a baseball."

We tend to roll our eyes at such precautionary information. After all, who needs to be "warned" about such obvious hazards or potential misuses? Because the appropriateness of a warning largely depends on whether product risks are open and obvious to product users, the question of what hazards are "known or knowable" is often the critical dispute in product liability litigation.

In April 2008, California joined 28 other states when it unanimously adopted the "sophisticated user" doctrine in failure to warn cases. (1) The doctrine negates a manufacturer's duty to warn of a potential danger posed by a product where the plaintiff (or present user) has, or should have had, advance knowledge of a product's inherent hazards.

Here, we explain the contours of the sophisticated user doctrine in California and other jurisdictions, as well as the sophisticated purchaser doctrine which is likely to extend from it. We also provide practical tips--including a sample jury instruction--on raising the doctrines in the trial court.

1. The Recently-Adopted Sophisticated User Doctrine in California

   William Keith Johnson was a trained and U.S. EPA certified heating, ventilation, and air conditioning (HVAC) technician. He claimed that various commercial refrigerant manufacturers and distributors and HVAC equipment manufacturers should have warned him that brazing an air conditioner evaporator containing residual refrigerant would create harmful phosgene gas, a danger of which he claimed to be ignorant. The Court of Appeal affirmed the grant of summary judgment in favor of defendants on the ground they had no duty to warn of a danger generally known or reasonably expected to be known by members of Johnson's profession, who were specifically trained about such dangers.

   In Johnson v. American Standard, Inc., (2) the California Supreme Court affirmed the summary judgment, and explicitly adopted the sophisticated user doctrine as an outgrowth of the "obvious and known danger" rule. (3)

   The Supreme Court held the sophisticated user doctrine applies equally to negligence and strict liability failure-to-warn claims, and that the focus should be on "whether the plaintiff knew, or should have known, of the particular risk of harm from the product giving rise to the injury." (4) The court acknowledged that, under this standard, "there will be some users who were actually unaware of the dangers. However, the same could be said of the currently accepted obvious danger rule; obvious dangers are obvious to most, but are not obvious to absolutely everyone." Additionally, a sophisticated user's knowledge of the risk should be measured "from the time of the plaintiff's injury, rather than from the date the product was manufactured." (5)

   The court reasoned that public policy favored adoption of the defense because it discouraged "overwarning" and therefore "help[ed] ensure that warnings will be heeded." (6) By not requiring manufacturers or sellers to warn about obvious dangers, the court thereby avoided the

   social cost of "overwarning," ... in the diversion of limited user attention to warnings that are perceived as verbose, irrelevant false alarms [t]he [resulting] increased competition for user attention would come at the expense of those truly necessary warnings about hidden dangers that, if read and heeded, have the potential to motivate a change in the user's safety-related behavior. (7) B. The Sophisticated User Doctrine and The Trained Professional

   Courts in other jurisdictions have found members of numerous professions to have special knowledge of hazards sufficient to preclude the duty to warn, including: electricians, electronics technicians, beauticians, carpenters, plumbers, painters, crewmembers of a barge with tanks used for chemical products, mechanics, forklift operators, and a certified HVAC technician like plaintiff in Johnson. (8)

   Indeed, the sophisticated user doctrine applies with particular force to plaintiffs who are trained professionals.

   Under traditional failure-to-warn doctrine, if more than one category of users and consumers is foreseeably likely to use or consume the product, then the duty owed to the particular plaintiff will be judged by the category of users or consumers into which the plaintiff falls. If the plaintiff is an expert, no duty to warn may be owed him even if such duties are owed to non-expert users or consumers. (9) One treatise has put it this way:

   The effect on the duty to warn arising from the sophistication or special knowledge of the user is especially significant when the user is a professional who should be aware of the characteristics of the product. An experienced professional, employed for the very purpose of handling the ... [product] in question, is more likely than an ordinary consumer to have the requisite knowledge of the specific risks." (10) Implicit in this analysis is a policy judgment that a professional, when faced with a risk commonly encountered in his profession, will be in the best position to determine how to respond to these risks and adjust his behavior accordingly. (11) Thus, in assessing whether a warning is required, many courts--as did the California Supreme Court in Johnson--look to the general or common knowledge that may be attributed to members of plaintiff's profession. (12)

3. Extending The Sophisticated User Doctrine to Eliminate The Duty to Warn Knowledgeable Purchasers

   The contours of the sophisticated user defense adopted in Johnson apply to a limited class of cases: where the direct product user belongs to a highly knowledgeable and trained class of professionals. But what about cases where the intermediate purchaser (the user's employer or finished product manufacturer, for example) either has or can be charged with knowledge of the product's or component's hazards and can be expected to pass this knowledge on to the ultimate user?

   The sophisticated purchaser doctrine provides that, where a product is sold to a sophisticated or knowledgeable purchaser, the manufacturer or distributor has no duty to directly warn the ultimate product users (such as the purchaser's employees) of any hazards posed by the product where it is reasonable to rely upon the purchaser to communicate the necessary warnings (because the purchaser either has or can be expected to have independent knowledge of the hazards, or was informed of them by the manufacturer).

   Although the California Supreme Court did not expressly define the contours of the sophisticated purchaser doctrine, the Johnson opinion indicates that, if given the opportunity, the court would apply sophisticated user principles to sophisticated purchasers.

   In analyzing other California and federal court decisions that purportedly signaled the court's adoption of the sophisticated user doctrine, the Court in Johnson favorably referred to decisions expressing support for the sophisticated purchaser doctrine. (13)

   Moreover, one California Court of Appeal, citing the Restatement, has approved the sophisticated purchaser doctrine, holding that where a product is sold to a sophisticated and knowledgeable purchaser, the manufacturer or distributor has no duty to directly warn the ultimate product users (such as the purchaser's employees) of any hazards posed by the product so long as it is reasonable to rely upon the purchaser to communicate the necessary warnings. In Persons v. Salomon North America, Inc., (14) the court held a ski-bindings manufacturer had no duty to warn plaintiff skier directly of the danger posed by pairing its bindings with certain types of boots; the manufacturer "had a reasonable basis to believe [its dealers] would pass along [its] product warning and was justified in relying upon [the dealer] to perform its independent duty to warn as required by law." The ski-binding purchaser in Persons happened to gain its knowledge of hazards from the manufacturer, but there is no indication that the Persons court conditioned its application of the sophisticated purchaser doctrine on that fact, or would reject the doctrine where the purchaser has independent knowledge of a product's hazards. (15)

   Nationwide, the sophisticated purchaser doctrine has gained particularly wide acceptance: over 30 states have adopted the defense. (16) While the exact formulation of the defense varies from state to state, it does not necessarily depend on an adequate warning being given by the manufacturer. Under either the minority or the majority view of the sophisticated purchaser doctrine, there is no duty to warn a purchaser who is already knowledgeable about a product hazard and can be expected to pass on that knowledge to the product user.

   The Minority View: The Intermediate Purchaser's Knowledge Categorically Defeats Any Duty to Warn the End User. Approximately one-third of the jurisdictions that have adopted the sophisticated purchaser defense have taken a strict common law duty approach, which focuses exclusively on the intermediate purchaser's knowledge and absolves the seller of any duty to warn the ultimate product user so long as the purchaser is or should be aware of the product's hazards. Under this formulation of the sophisticated purchaser doctrine, an adequate warning by the manufacturer is not necessary for the defense to apply, so long as the intermediary had independent knowledge of the product's hazards. The relevant inquiry under this formulation of the defense is simple: If the purchaser-employer had knowledge or notice of the product's hazards, through either the supplier's warnings or independently-obtained information, the supplier has no duty to warn the purchaser's employees or customers and judgment will be entered as a matter of law in the supplier's...