Duty To Warn Remains After Sale

Manufacturers, sellers and distributors of commercial products have long been exposed to potential liability for products which are defective when sold. They may also find themselves faced with liability for failing to warn consumers of a product’s defects discovered after the sale has been made.

The New Jersey Supreme Court in 1984 held that, “Although a manufacturer may not have actual or constructive knowledge of a danger [at the time of distribution] so as to impose upon it a duty to warn, subsequently acquired knowledge, both actual and constructive, also may obligate the manufacturer to take reasonable steps to notify purchasers and consumers of the newly-discovered danger.” Feldman v. Lederle Laboratories, 97 N.J. 429 (1984). This holding is reflected in our state’s Product Liability Act of 1987 in the form of a codified defense to a warning defect case.

Many courts throughout the country besides those in New Jersey now impose upon manufacturers/sellers this “post-sale duty” to warn consumers of product defects when new information concerning risks of harm is brought to the attention of the manufacturer/seller after the sale occurs. The Restatement (Third) of Torts - a treatise which sets out the consensus majority opinion of learned commentators - in 1998 adopted the post-sale duty to warn where the manufacturer later becomes aware of risks from latent defects in its product. For this post-sale duty to arise, product users must be identifiable to the manufacturer and reachable. In determining whether product users are identifiable, the Restatement urges courts to consider the type of product, the number of units sold, the number of potential users and the availability of records identifying customers.

In a recent case handled by this firm, the product which injured the plaintiff was manufactured nearly 100 years ago. After the flat-bed press was sold without guards in 1909, it was re-sold many times over. The manufacturer had records of the first three re-sales but then lost track of the whereabouts of the machine after 1945. The flat-bed press eventually found its way into the plant owned by plaintiff’s employer. Plaintiff alleged that the original manufacturer was responsible for failing to guard the machine. However, since there were no definitive standards in this country in 1909 which would have required guards on such a machine, plaintiff’s alternative, and perhaps better, argument was that the manufacturer had not satisfied the post-sale duty to warn. The argument was that the manufacturer learned throughout the years that the machine was unsafe in its unguarded condition and should have taken steps to notify the current owner of the machine that guards were now necessary.

The duty to warn users after sale of the product can be costly for the manufacturer. While costs of warnings provided at the time of sale are small and easily included within the cost of the product, post-sale warnings are much more costly and are borne solely by the manufacturer. Post-sale duties to warn can conceivably last for the life span of the product. This cost needs to be considered in perspective by comparison to a verdict which might need to be paid to a seriously injured user who was not provided with a post-sale warning found in retrospect to have been justified under the circumstances and required.

Post-sale warning notifications are also less costly than a product recall, which entails the manufacturer calling back a product for an additional warning, repair or replacement at no cost to the product owner. Recognizing that recall of a product after its sale is usually significantly more costly than simply warning consumers of product dangers, most courts in this country agree that, unless mandated by statute, manufacturers have no duty to recall a defective product. The Restatement (Third) of Torts has noted that “If every improvement in product safety were to trigger a common-law duty to recall, manufacturers would face incalculable costs every time they sought to make their product lines better and safer.” [However, if a manufacturer voluntarily undertakes a product recall but does so negligently, liability may be imposed.]

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