United States: Revisiting The Post-Sale Duty To Warn

A federal district court judge in New York City's Southern District, applying Virginia law, recently invoked the concept of a manufacturer's "post-sale duty to warn" to hold an automobile company potentially liable for failing to warn about an alleged defect in a car that it technically did not even manufacture. The ruling came in the context of the General Motors Ignition Switch multidistrict litigation (14-MD-2543).

Manufacturer versus Post-bankruptcy Successor

The plaintiff's compact car went off the road, but its airbags failed to deploy because of an alleged defect in the car's ignition switch that caused the airbags to move to the "off" position. Judge Jesse Furman denied a motion for summary judgment brought by the "new" GM, the post-bankruptcy successor to the "old" GM (OGM), the car's actual manufacturer, noting, for example, that "new GM" (NGM) had assumed OGM's warranty obligations to its customers when NGM entered into the 2009 sales agreement with OGM. The Court further noted the contacts between the plaintiff and NGM under Virginia state law might indeed recognize a post-sale duty to warn about OGM's allegedly defective ignition switches. Additionally, he stated, "there is evidence that new GM had 'actual knowledge' of the ignition switch defect when it acquired the assets of old GM."

Judge Furman's ruling by itself is not surprising inasmuch as a manufacturer's post-sale duty to warn has been recognized for many years. While opponents of the rule often make note of the practical difficulties inherent in a manufacturer's attempt to identify customers in the case of a product that often changes hands, proponents of the rule stress that product manufacturers have access to post-sale information about previously unknown product defects and are in the best position to transmit the necessary information to consumers who could then make an informed choice as to whether to continue to use the product.

Even the Restatement (Third) of Torts: Products Liability codified the duty in 1998. It requires a warning "after the time of sale or distribution of a product" when the seller knows that the product poses a substantial risk of harm; users can be identified and would otherwise be unaware of the risk of harm; a warning can be effectively communicated; and the risk of harm is not outweighed by the burden of providing the warning. Many states now recognize a post-sale duty to warn by common law, statute or some combination of the two.

If a manufacturer's responsibility for a product does not end when the product leaves the manufacturer's hands, just what circumstances then might trigger a post-sale duty to warn? Reports of post-sale accidents may provide information about defects and hazards in products that have already been sold. Changes in the state of the art over time – for example, in the case of automatic braking systems in cars, where new technology is developed that would make accidents and/or injuries less likely to occur. Taken together, they may give a manufacturer pause to consider the safety of its previous design and to realize that warnings about a defect or hazard that could not have been known at the time of manufacture are now necessary to prevent future harm.

Analysis of the Duty to Warn

In my home state of New York, the Cover v. Cohen (61 N.Y. 2d 261) decision from 1984 remains the seminal case on the topic. The Court of Appeals held that the duty to issue a post-sale warning may indeed be found, depending on factors such as the degree of danger posed by the product, the number of reported accidents, the burden of providing the warning, and the burden and ability to track the product after sale. Applying these factors, a manufacturer faced with the potential of issuing a post-sale warning might want to undertake the following analysis:

  • Is an injury likely to happen if a warning is not given? This is first part of the "degree of danger" that the Cover court mentioned. The more likely that an injury will happen without a warning, the more likely that a court will find that the manufacturer should provide the post-sale warning. If the chance for an injury remains remote even without a post-sale warning, it is less likely that the warning will be required.
  • Is the likely injury a serious one? This is the second part of the "degree of danger" factor. If the lack of a post-sale warning will likely result in death or serious bodily injury, then you can bet that a post-sale warning is more likely to be required. A minor injury? Less likely.
  • Is the product mass produced? This is the first part of the Cover court's mention of "the burden and ability to track the product after sale." A court will more likely find that a post-sale warning is required in the case of a unique and specialized item – say, a large industrial machine – as opposed to a product that is manufactured in the millions. The burden and expense of warning about a mass-produced product may outweigh the danger in not warning about it.
  • Can the product be identified and traced to specific owners? This is the second part of Cover's "burden" analysis. Products that carry individual serial numbers and/or lot numbers allow the manufacturer, when needed, to identify the ones that require the warning. If the product is one that allows the consumer to register it with the manufacturer by mailing in one of those postcards – think of a large appliance – then the manufacturer is in a position to match a given unit to a given name and is more likely to have a duty to issue a post-sale warning.

A manufacturer's responsibility does not necessarily end once the product leaves its possession. The cautious product manufacturer must keep abreast of developments in the state of the art and cannot ignore incidents involving its products. With the assistance of seasoned counsel, the manufacturer may identify circumstances that require a post-sale duty to warn. The questions above are merely suggestions and serve to illustrate the type of analysis that a manufacturer and its legal team should undergo in determining whether a post-sale duty to warn exists.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions