Products liability cases often allege a failure of the duty to warn the user. To prevail on such a theory, a plaintiff must prove that the absence of the warning was a proximate cause of the harm suffered.
In the absence of a warning, the “heeding presumption” presumes that a user would have read and heeded a manufacturer’s adequate warning if one had been given. As a result, if the defendant produces no evidence that a warning would not have been heeded, the plaintiff is entitled to a directed verdict on proximate causation.
A presumption is neither a law in the legislative sense nor a court rule. It is a rule of law which has the effect of compelling a particular conclusion upon the finder of fact in the absence of contrary evidence. The heeding presumption, judicially endorsed in New Jersey in 1993, is tempered by the fact that it is a rebuttable presumption. Rebuttal evidence is any evidence tending to disprove the presumed fact. If the defendant presents sufficient evidence to rebut the presumption, the presumption disappears and the issue of proximate cause goes to the jury.
Defendants can rebut the presumption in three ways. A defendant can show: (1) the plaintiff already knew of the product’s risk; (2) the plaintiff is indifferent to safety warnings; or (3) for some other reason a warning, or a better warning, would not have prevented the plaintiff’s injury, such as where the plaintiff admits he did not read the warning label.
In May of this year the New Jersey Supreme Court analyzed the second of the three ways to rebut in Sharpe v. Bestop. Defendants attempted to show that the plaintiff was indifferent to and generally did not follow safety warnings. Sharpe was injured when he fell asleep at the wheel of his jeep, hit a guardrail and was thrown from the vehicle right through a soft top roof. He was not wearing his seatbelt. Plaintiff alleged that the soft top manufacturer should have warned him to use seatbelts when using the soft cover.
To rebut the presumption, the defendant manufacturer attempted to show that the plaintiff often disregarded warnings. First, the manufacturer attempted to prove that plaintiff disregarded warnings on the car visor to always wear seatbelts. Second, it attempted to show plaintiff sometimes disregarded another warning on the visor not to drink and drive.
Sharpe distinguishes between evidence of habit and evidence of character. Only habit evidence is properly used to show plaintiff’s indifference to warnings. Plaintiff’s regular failure to wear seatbelts was established. This habit was sufficient to rebut the presumption that plaintiff would have heeded a warning to wear his seatbelt when using the soft cover. That plaintiff on occasion drank and drove was not a habit. As indicative of character only, that evidence not capable of rebutting the heeding presumption.
In this way, the Sharpe case clarified the second way to rebut a heeding presumption - the defendant must show plaintiff’s habitual indifference to safety warnings.
However, just because evidence is inadmissible as habit evidence to defeat the heeding presumption does not mean that the same evidence is inadmissible for all purposes. Sharpe made clear that non-habit evidence could be admissible to show comparative fault of a plaintiff. For example, if a plaintiff did not routinely ignore pharmaceutical warnings, but on this occasion fell asleep at the wheel after disregarding a “may cause drowsiness” warning, such evidence should be admissible on comparative fault, though it would not rise to the level of a habit sufficient to rebut the heeding presumption.
The Court approved the practice of conducting a preliminary hearing to determine the admissibility of evidence to be offered to rebut a heeding presumption. The trial judge is to decide not whether the evidence proffered is convincing, but whether it is relevant and admissible. If so, the heeding presumption is rebutted and disappears. Plaintiff is left to prove proximate cause between the inadequate warning and the injury.
By way of postscript, the jury in Sharpe found that the soft top manufacturer should have warned the plaintiff to use his seatbelt, but that plaintiff would not have heeded the warning if given and therefore there was no proximate cause between the failure to warn and the injuries suffered. The Supreme Court found that the jury’s conclusion was reasonable and left it undisturbed.