Academic journal article Defense Counsel Journal

Limiting Manufacturers' Duty to Warn: The Sophisticated User and Purchaser Doctrines

Academic journal article Defense Counsel Journal

Limiting Manufacturers' Duty to Warn: The Sophisticated User and Purchaser Doctrines

Article excerpt

THE coffee cup says "Caution: Contents may be hot. The ladder decal says "Danger: Do not stand on top platform. You may fall." The baseball bat wrapper says "Warning: This bat should hOt be used for any purpose other than hitting a baseball."

We tend to roll our eyes at such precautionary information. After all, who needs to be "warned" about such obvious hazards or potential misuses? Because the appropriateness of a warning largely depends on whether product risks are open and obvious to product users, the question of what hazards are "known or knowable" is often the critical dispute in product liability litigation.

In April 2008, California joined 28 other states when it unanimously adopted the "sophisticated user" doctrine in failure to warn cases. (1) The doctrine negates a manufacturer's duty to warn of a potential danger posed by a product where the plaintiff (or present user) has, or should have had, advance knowledge of a product's inherent hazards.

Here, we explain the contours of the sophisticated user doctrine in California and other jurisdictions, as well as the sophisticated purchaser doctrine which is likely to extend from it. We also provide practical tips--including a sample jury instruction--on raising the doctrines in the trial court.

A. The Recently-Adopted Sophisticated User Doctrine in California

William Keith Johnson was a trained and U.S. EPA certified heating, ventilation, and air conditioning (HVAC) technician. He claimed that various commercial refrigerant manufacturers and distributors and HVAC equipment manufacturers should have warned him that brazing an air conditioner evaporator containing residual refrigerant would create harmful phosgene gas, a danger of which he claimed to be ignorant. The Court of Appeal affirmed the grant of summary judgment in favor of defendants on the ground they had no duty to warn of a danger generally known or reasonably expected to be known by members of Johnson's profession, who were specifically trained about such dangers.

In Johnson v. American Standard, Inc., (2) the California Supreme Court affirmed the summary judgment, and explicitly adopted the sophisticated user doctrine as an outgrowth of the "obvious and known danger" rule. (3)

The Supreme Court held the sophisticated user doctrine applies equally to negligence and strict liability failure-to-warn claims, and that the focus should be on "whether the plaintiff knew, or should have known, of the particular risk of harm from the product giving rise to the injury." (4) The court acknowledged that, under this standard, "there will be some users who were actually unaware of the dangers. However, the same could be said of the currently accepted obvious danger rule; obvious dangers are obvious to most, but are not obvious to absolutely everyone." Additionally, a sophisticated user's knowledge of the risk should be measured "from the time of the plaintiff's injury, rather than from the date the product was manufactured." (5)

The court reasoned that public policy favored adoption of the defense because it discouraged "overwarning" and therefore "help[ed] ensure that warnings will be heeded." (6) By not requiring manufacturers or sellers to warn about obvious dangers, the court thereby avoided the

   social cost of "overwarning," ... in the
   diversion of limited user attention to
   warnings that are perceived as verbose,
   irrelevant false alarms [t]he
   [resulting] increased competition for
   user attention would come at the
   expense of those truly necessary
   warnings about hidden dangers that, if
   read and heeded, have the potential to
   motivate a change in the user's safety-related
   behavior. (7)

B. The Sophisticated User Doctrine and The Trained Professional

Courts in other jurisdictions have found members of numerous professions to have special knowledge of hazards sufficient to preclude the duty to warn, including: electricians, electronics technicians, beauticians, carpenters, plumbers, painters, crewmembers of a barge with tanks used for chemical products, mechanics, forklift operators, and a certified HVAC technician like plaintiff in Johnson. …

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