When is There a Post-Sale Duty to Warn?

Written by Brian A. Cafritz, Esq.

With fires to hoverboards, cell phones, and other products routinely in the news, questions arise as to whether or not a retailer and manufacturer have a post-sale duty to warn consumers of dangers to its products. Virginia law on this point is muddled, and the Virginia Supreme Court has never provided a direct answer. However, the US District Court in the Eastern District of Virginia had a chance to grapple with this very question. In Estate of Rodriguez v. Diehl Woodworking & Machinery, Inc., 2016 U.S. Dist. LEXIS 103434, the Plaintiff was killed when a ripsaw produced a kickback, sending a sliver of wood out of the machine, and into his head.  His estate sought recovery against the manufacturer under general negligence and for the failure to warn post sale.

Under Virginia law, there are only three theories to recover under a products liability claim: 1) negligent manufacture; 2) negligent design; or 3) failure to warn. Morgan Indus., Inc. v. Vaughan, 252 Va. 60 (1996).   When faced with a general negligence claim, a Virginia court will attempt to fit the plaintiff’s claims into one of those three categories. If the court cannot do so, the plaintiff’s claim must fail. Sykes v. Bayer Pharms. Corp., 548 F. Supp. 2d 208 (E.D. Va. 2008).  Under a failure to warn claim, a plaintiff must show that the manufacturer knows or has reason to know that the product is dangerous for its anticipated use; has no reason to believe that users will know of the product’s dangerous condition, and fails to take reasonable care to warn of those dangers. Funkhouser v Ford Motor Co., 285 Va. 272 (2013).

In considering the general negligence claim, the Court examined the Plaintiff’s allegations that the manufacturer had failed to conduct proper inspections and quality control, and that it had failed to adhere to federal regulations and industry standards. The Court interpreted these claims to mean that, had these steps been taken, the product would have been more safely designed.  As such, these allegations were allowed to proceed.  However, when plaintiff alleged that the manufacturer did not conduct adequate testing of the product, the Court did not construe these allegations as a negligent design claim. The Court explained that, for the plaintiff’s failure to test claim to constitute a negligent design claim, the plaintiff would have had to allege that additional testing would have resulted in a reasonable alternative design. Indeed, the Court noted that Virginia law is clear that under a failure to warn theory, a plaintiff must establish a “reason to know” of a danger in order to require additional testing. Torkie-Tork v Wieth, 757 F. Supp 2d 567 (E.D. Va. 2010).  Because there were no allegations showing Diehl had a reason to know, this claim was dismissed.  Finally, the Court considered claims that Diehl failed to discontinue sales and recall the product once it learned of the propensity to kick back.  Virginia law does not recognize a duty to recall. Paschall v CBS Corp., 2011 U.S. Dist. LEXIS 104725 (E.D. Va. 2011). As such, the claim for failure to recall the product was summarily dismissed.

As for the Failure to Warn Post Sale, Plaintiff alleged that Diehl was liable for not warning consumers of the potential for kickbacks. Diehl argued that a post-sale duty to warn does not exist in Virginia; however, the Virginia Supreme Court has never explicitly recognized or rejected such a duty.  One line of cases has held that a post-sale duty to warn only exists when the manufacturer knew or should have known of dangers.  Another approach holds a manufacturer responsible for failing to warn of dangers discovered post sale if it would have been reasonable to provide such warnings upon discovering the dangers.  In deciding which view controlled in Virginia, the Court looked to the Restatement of Torts § 388, which places no limits on negligence actions where a manufacturer knew or should have known of a danger.  Further, the Court noted that the Virginia Supreme Court has allowed evidence of defects in cases without distinguishing if the defects were pre-sale or post sale.  The final factor in the Court’s decision was that the Virginia Supreme Court has placed a higher burden on manufacturers due to their superior knowledge of their products over the customer.  When weighing these factors together, the Court held that the second view controls: a manufacturer could be held liable for failing to warn about dangers discovered after selling a product, if it was reasonable for the manufacturer to provide such warnings upon discovering the dangers.

While the trend of courts seems to be flowing towards a post-sale duty to warn, the practicality of such warnings is far from clear. Indeed, the ruling opens a Pandora’s Box of issues.

One thing that seems clear now, is that the post sale duty does not yet extend to retailers. Indeed, the factors weighed by the Diehl court are all expressly attached to the manufacturer.  The court does not intimate in any way that the duty extends to the retailer.

However, the court has not addressed what kinds of warnings are reasonable. Does what is reasonable go to the existence of the duty to warn or the execution of such warning? To whom is notice required: registered purchasers, secondary market users, or the general public?  What efforts must be made to locate past registered users? Is notice on a company website sufficient, or is a formal CPSC product warning required?  Moreover, there is no limitation on the vintage of products stated.  For example, would a duty to warn exist on a product that is known to work fine for ten years, but over time, needs parts replaced?  What about a company who has made products for several generations?  Does there come a time when the manufacturer is no longer required to warn for products that have been in the stream of commerce for twenty-five or fifty years?

Under the controlling standard, the post sale duty to warn depends upon whether it would be reasonable for the manufacturer to provide such a warning.  It seems reasonable that notifying registered users at their last known address (street or email) is easy enough.  Further, it may be that posting bulletins on a manufacturer’s website such that a simple google search could find it would be sufficient.  Hopefully, case law will answer these questions over time.

If you have questions regarding the status of the law and its impact, please call KPM LAW for an attorney to discuss these and other issues.

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