The sky is falling!

A major insurance carrier contends that 44% of all lawsuits in the U.S. involve inadequate or non-existent warnings. Typically, a plaintiff complains that had he been warned about the hazards of his behavior, serious injury or death could have been prevented. The manufacturer will argue that a warning was not necessary or that the written warnings provided were adequate.

A product can be defective if the manufacturer fails to provide adequate instructions or warnings for reasonably foreseeable uses and harms. The warning must contain facts necessary to permit a reasonable person to understand the danger and, in some cases, how to avoid it. It must be clear and convey the requisite intensity equal to the nature, degree, and extent of risk of harm to the user. Furthermore, it must be sufficiently conspicuous. The adequacy of product warnings are typically judged under a reasonableness standard. The courts weigh various factors, including the content, location and intensity of the warning. No bright line rules exist as to what constitutes an adequate warning, and the adequacy is determined on a case-by-case basis.

Many private and government guides exist to assist in establishing adequate warnings. One such guide is the Manufacturer's Guide to Developing Consumer Product Instructions. It includes hints on getting product warnings noticed by the consumer. For example, it suggests that instructions to the consumer be placed where the consumer is likely to be looking when first using the product. Supplemental directives, which are messages that relate or point to the complete set of instructions, can be more eyecatching than the main document. These include hang tags that can direct the consumer to instructions and emphasize their importance. Supplemental directives also include the use of an abbreviated set of safety instructions in a highly visible area.

Designers and manufacturers whose products have extended delivery times might consider sending instructions and training materials to the purchaser in advance of the product itself. Include a clear message that safety instructions should be maintained. Further, the end user benefits if an address, phone number, or website is made available-where the consumer can access new, supplemental, or replacement instructions. Many more helpful hints can guide the consumer more easily through product warnings and instructions, including the use of appropriate size paper and print, the use of white space to break up different elements on a page, highlighting on key phrases, and avoiding long sentences.

Studies have pointed out that providing the end user with warnings about trivial matters or inundating them with voluminous warnings may actually invite danger. This is true because important warnings are then more likely to be ignored. Therefore, it is important not to blur a warning with excess language. Obvious statements such as "use with caution" or "use common sense" can weaken the impact of other instructions.

Where there is no reasonable design alternative and guarding is unfeasible, manufacturers and designers are left with providing the consumer with clear, effective warnings in order to prevent injury. Although instances exist where excessive warnings many actually increase a hazard, plaintiffs attorneys are expert at using 20-20 hindsight to argue that a so-called simple and inexpensive warning could have prevented an injury. Thus, using rational criteria regarding the nature and use of warnings is always appropriate when placing fluid power products in the hands of consumers.

Pete C. Elliott is vice-chairperson of the Trial Department at Benesch, Friedlander, Coplan & Aronoff LLP in Cleveland, and is the team leader of its Fluid Power Defense Group. Contact Elliott at [email protected]