Warning: A Post-Sale Duty to Warn Targets Small Manufacturers

63 Pages Posted: 18 Feb 2014 Last revised: 25 Mar 2015

See all articles by Jill Wieber Lens

Jill Wieber Lens

University of Arkansas - School of Law

Date Written: February 17, 2014

Abstract

The majority of states now obligate manufacturers to warn about dangers of their products that are discoverable after the sale. Commentators and courts have been hesitant about this obligation because of the potential burden it puts on manufacturers — the costs of identifying users and warning them of the danger. The consensus is that only a factually dependent post-sale duty to warn should exist, obligating manufacturers to warn only if a reasonable manufacturer would do so. A reasonable manufacturer, of course, would warn only if the danger to be warned of justifies the costs of the warning.

This Article is the first to identify a problem with a factually dependent post-sale duty to warn — that it will most likely result in liability for small manufacturers, but not large manufacturers. This is because the costs of issuing the warning for a small manufacturer will always be smaller than for a large manufacturer. This Article is also the first to argue that a factually dependent post-sale duty to warn is thus inconsistent with the underlying purposes of products liability law and general public policy. Although the factually dependent post-sale duty to warn seemed like a perfect solution to the overburdening problem, it should not be adopted.

Keywords: products liability, post-sale duty to warn

Suggested Citation

Lens, Jill Wieber, Warning: A Post-Sale Duty to Warn Targets Small Manufacturers (February 17, 2014). Utah Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2397403 or http://dx.doi.org/10.2139/ssrn.2397403

Jill Wieber Lens (Contact Author)

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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