Kelley Uustal Trial Attorney
March 23, 2019

What Is Failure to Warn in a Defective Product Claim?

Product manufacturers owe consumers a few different duties of care. One is to exercise reasonable care in designing and creating products that are safe for reasonable use and free from defects. Another is to be proactive in searching for new product defects and safety hazards. One of the most important duties a manufacturer has is to warn consumers of known potential hazards of using a product. Failure to warn of a product defect, resulting in preventable injuries or deaths, may lead to a product liability claim.

Product Liability Laws in Florida

Like most states, Florida has strict product liability laws. The courts will hold a product manufacturer strictly responsible, or responsible without the need to prove negligence, for all injuries involving its defective products. All a plaintiff’s lawyer must show to obtain compensation during a strict liability lawsuit is that the item caused the injury and that it contained one of three defects.

  1. Design flaw: A design flaw is a mistake made during the product’s inception that makes it unreasonably dangerous for consumers. An example is a vehicle design in which the height of the car poses a risk of rollovers.
  2. Manufacturing mistake: A manufacturing mistake is an error or act of negligence during the creation of the product. An example would be if a vehicle had a safe design, but a mix-up during tire manufacture caused a blowout.
  3. Marketing error: A marketing error is the company’s failure to warn consumers of known or potential risks of using the product. An example would be if the automaker knew the vehicle was prone to flipping, but never warned consumers of this risk.

The third defect type is the one associated with failure to warn in a defective product claim. Failure to warn often stems from a manufacturer’s attempt to protect itself from backlash and liability for damages. Many manufacturers realize the potential dangers of a product, yet keep the information secret, to avoid penalties and payouts. It often is not until the defective product causes a serious personal injury that the manufacturer has to face its oversights.

How to Prove Failure to Warn

Under Florida’s strict liability laws, an injured victim of a defective product does not typically need to prove a manufacturer’s negligence. Instead, the victim (or his or her attorney) must only show that the item contained a defect, and that this defect caused the injuries in question. In a failure to warn case, therefore, it will be up to the plaintiff’s lawyer to prove three main elements.

  1. The item contained a defect. A marketing oversight that fails to warn consumers of a risk the manufacturer knew or reasonably should have known about is a product defect. A lawyer can collect information about the product, the manufacturer, and other consumers’ experiences with the item to help prove this element.
  2. The item caused the victim’s injuries. A lawyer can rely on medical records, eyewitness statements, and other forms of evidence to help prove that it was the product that caused the victim’s injuries, and that the victim was using the product as the manufacturer intended at the time of the incident.
  3. The victim suffered damages as a result. Finally, the lawyer will need to demonstrate that the victim suffered real, compensable damages because of the manufacturer’s failure to warn. Damages can include physical injuries, wrongful death of a loved one, lost wages, pain and suffering, and property damage.

Some product liability cases will involve additional elements of proof if the rules of strict liability do not apply. If you need to bring a case against a manufacturer on the grounds of negligence, for example, you or your attorney would need to establish that the manufacturer owed you a duty of care, and breached this duty by failing to warn consumers of potential risks. An attorney can help you understand the elements necessary for your particular case and can help you fight for justice from an at-fault product manufacturer or distributor.

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