History of the Connecticut Judicial Seal Home Home BannerBanner


 

 

 

 

 

   

3.10-2  Product Liability - Failure to Warn

Revised to January 1, 2008

The plaintiff claims that the defendant is liable under the Connecticut Product Liability Act because it did not provide adequate warnings or instructions to advise users of the product that they would have to do certain things to avoid being injured by using the product.  Failure to provide adequate warnings or instructions, where they are necessary, constitutes a product defect for which a product seller is liable under the Connecticut Product Liability Act.

The plaintiff claims that <explain the plaintiff s claim with regard to warnings>.

A product seller is liable to a party who suffers injury or loss from the use of a product if the product could not be used safely by the ordinary consumer without adequate instructions or warnings.

You must decide whether a warning was necessary and, if it was, whether the warning was adequate.  In deciding whether a warning was necessary, you may consider:

  1. the likelihood that the product would cause the harm suffered by the plaintiff;

  2. the ability of the product seller to anticipate at the time the product seller put the product into the stream of commerce that the expected product user would be aware of the risks involved in using the product and the nature of the potential harm;

  3. the technological feasibility and cost of warnings and instructions.

A product seller has a duty to warn of hidden dangers in the use of a product in the ordinary, customary way.  A product seller also has a duty to warn of dangers that may result from misuse of a product if the misuse is of a type that the product seller reasonably should foresee.

A product seller does not have a duty to provide a warning as to a danger that is obviously involved in the customary, ordinary use of the product or that is obviously present if the product is misused.

A product seller is not liable for failure to warn of risks that were not known to it or that it could not reasonably have foreseen at the time it put the product into the stream of commerce.

Where the product seller has provided a warning, it may still be liable if the warning provided is not adequate to advise the ordinary user of the nature and extent of any danger associated with the reasonably anticipated use, or with the reasonably anticipated misuse of the product.  In assessing whether the warning that has been provided is adequate, you should consider whether the danger is one that is obvious to a user and whether the warning is placed with proper prominence in relation to the risk to which the warning applies.  To be adequate, a warning must be devised to communicate with the person best able to take or recommend precautions against the potential harm.

A product seller that provides an adequate warning is entitled to presume that such a warning will be heeded by the user, and if the product is safe for use so long as the warning is heeded, the product is not defective.

A product seller is not liable for failure to provide a warning if the plaintiff is aware of the danger.

Causation
If you find that the product is defective because it failed to provide a warning when one was reasonably required or because the warning was inadequate, then you will go on to consider the element of causation.  The plaintiff has the burden of proving that the lack of a warning, or the lack of an adequate warning, was a proximate cause of the plaintiff’s injuries.  The plaintiff must prove that if adequate warnings or instructions had been provided, the plaintiff would not have suffered the harm.  If the plaintiff would have suffered the harm even if adequate warnings or instructions had been provided, then the defendant is not liable for failure to warn.

Authority

General Statutes § 52-572q; Haesche v. Kissner, 229 Conn. 213 (1994); Sharp v. Wyatt, Inc., 31 Conn. App. 824, aff’d, 230 Conn. 22 (1993); Giglio v. Connecticut Light & Power Co., 180 Conn. 230 (1980); Gajewski v. Pavelo, 36 Conn. App. 601 (1994), aff’d, 236 Conn. 27 (1996).

Notes

In Vitanza v. Upjohn Co., 257 Conn. 365, 378 (2001), the court held that the “learned intermediary doctrine” was applicable to product liability claims.  “The learned intermediary doctrine provides that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly.  The doctrine is based on the principle that prescribing physicians act as ‘learned intermediaries’ between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient's needs and assess [the] risks and benefits of a particular course of treatment.”  (Internal quotations omitted.)  Id., 376.  The learned intermediary doctrine applies to prescription drugs; Vitanza, and also to prescription implantable medical devices such as pacemakers; Hurley v. Heart Physicians, P.C., 278 Conn. 305, 317-18 (2006).

 


 

Attorneys | Case Look-up | Courts | Directories | Educational Resources | E-Services | Español | FAQ's | Juror Information | Media | Opinions | Opportunities | Self-Help | Home

Common Legal Words | Contact Us | Site Map | Website Policies and Disclaimers

Copyright © 2011, State of Connecticut Judicial Branch