Failure to Warn

While some products are made or designed in a way that is defective, others only pose a risk to consumers because of a hidden danger that, if unknown, can seriously hurt someone. The companies that make those types of products have a legal obligation to warn people of the dangers that they can face, even if they use the product as it was intended to be used.

If the company selling the product fails to warn consumers about the risks of using their product, they can be held liable for the foreseeable results. The products liability lawyers at the Philadelphia law offices of Gilman & Bedigian can make that happen.

What is a Failure to Warn, or an Advertising Defect?

A failure to warn defect is often referred to as an advertising defect. As the name implies, it involves a situation where a company makes a product that could be dangerous – even when it is used in the proper way. If the company does not adequately warn consumers about this danger, users could end up getting hurt purely because they were left in the dark about the potential for danger.

Most of the time, that warning is included on the product's packaging or user's manual. In some other cases, the warning is put on the product, itself, like a plastic trash bag that has been imprinted with a warning to parents that it can cause children to suffocate if they put it over their heads.

Failure to warn lawsuits are among the most common types of product liability lawsuits in the U.S., covering cases where the company was aware of the dangers as well as cases where the company had no way of knowing that what they were doing could put people at risk.

Some examples include:

  • Not warning patients who take a popular medication about known – or even possible – increases in serious health conditions, like cancer.
  • Failing to notify consumers that a child's toy is flammable.

Because advertising defects like these affect all of the products in the line or model, they frequently lead to class actions or multidistrict litigation because there are bound to be hundreds or potentially even thousands of people who have been hurt in nearly identical ways.

Strict Liability for Failing to Warn Consumers of a Dangerous Condition

Nearly all lawsuits that claim a company failed to warn consumers about the dangers of using their product aim to hold the companies behind the product strictly liable for the results. Under strict liability, the companies who produced the product can be held responsible for injuries caused by a lack of a warning, even if they did not act negligently when they left the warning out.

Such a warning has to satisfy numerous requirements, including:

  • Enough information for users to understand the danger, its severity, and how to avoid it.
  • The warning cannot be hidden.
  • The warning has to be in the language of the targeted demographic of consumers, and in pictures if children are likely to use the product.

In Pennsylvania, just because there is no warning on a product, however, does not mean that there was a failure to warn. Instead, the victim has to show that they would have followed a warning, had it been provided.

However, there are numerous exceptions to this rule that can doom a products liability case for failing to warn consumers of the risk of using a product.

The Risk Was Not Foreseeable to the Maker of the Product

Companies that make a product only have to warn consumers about foreseeable risks that are associated with using the product. While this does require the device manufacturer and designer to contemplate and research the potential risks, it does not require them to add warnings to products about dangers that are exceedingly rare.

Warnings Cannot Replace Safety Devices

When a product poses a risk to its users because it does not have adequate safety mechanisms to keep users from getting hurt, a warning about the dangers is not enough. Even if the warning is there, the product is still a serious danger.

For example, a circular saw that is made without a shield to protect the user's fingers from getting caught by the blade cannot simply carry a warning not to touch the blade.

In these cases, it is not a failure to warn defect, but a design defect.

The Risk Was Obvious

Companies also do not have to warn users about the open and obvious dangers of using their products. Car companies, for example, do not have to provide a warning in their owner's manuals about the risk of getting into a car accident.

Who Can Be Held Liable for Failing to Warn Consumers?

Failure to warn claims that rely on strict liability can hold all of the companies behind the product responsible for the resulting injuries. This includes the:

  • Designer
  • Manufacturer
  • Distributor
  • Seller

The reason for this broad stroke of liability is to make sure that the victim gets the compensation they need after getting hurt. Once the victim has been compensated, the defendants can sue each other for indemnification if they think they have paid too much.

Statute of Limitations for Failure to Warn Claims in Pennsylvania

Lawsuits that allege a failure to warn have to abide by the terms set forth in 42 Pa. Cons. Stat. § 5524 – Pennsylvania's statute of limitations for products liability claims. This law requires all lawsuits to be filed within two years of the victim's injuries.

Filing a failure to warn lawsuit after this time period has expired can lead to a quick dismissal of even the strongest case.

Philadelphia Products Liability Lawyers at Gilman & Bedigian

If you or a loved one has been hurt by a defective product that you did not think was dangerous, you may be entitled to compensation.

The products liability lawyers at Gilman & Bedigian can help you recover what you need to get back on your feet without sacrificing your financial well-being, as well. Contact them online to get started on your case.

Let Us Help

If someone you are close to has been seriously injured or worse, you are naturally devastated not only by what has happened, but by the effect that the injury or loss has had on you and your family. At a time when you're vulnerable, traumatized and emotionally exhausted, you need a team that will support you through the often complex process that lies ahead.

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