Products Liability — Inadequate Warnings

One popular basis for a products liability claim against a “seller” — one entity in the chain of distribution — is that the seller failed to adequately warn the user about the product and, as a result, the user was injured. The following cases provide some good examples.

Case in point:

In Gasse, et al. v. Sea Ray Boats, Inc., 65 P. 3d 245 (NE. Sup. Ct., March, 2003), Leo Gasse was killed and Robin Lewis was severely injured from generator-driven carbon monoxide poisoning while sleeping on a boat at Lake Mead, Arizona. Various Gasse heirs, Robin Lewis and others (plaintiffs) filed a products liability suit against the boat manufacturer, claiming that the warnings provided were inadequate to warn them of the danger of generator driven carbon monoxide poisoning, and that this failure to warn caused their injuries.

The case facts revealed that Gasse (along with a friend) had purchased a used boat from Sea Ray Boats, Inc. (defendant). At the time of purchase, Gasse was given two specific warnings regarding carbon monoxide: one provided by the manufacturer and the other by the National Marine Manufacturer’s Association. Both warnings advised about the dangers of carbon monoxide exposure. However, the warnings focused on carbon monoxide emanating from the engine. A Sea Ray boat salesman provided similar oral warnings at the time of purchase, even providing a demonstration — but again, focusing on the engine exhaust. Apparently, Gasse and Web suffered carbon monoxide exposure from “migrating carbon monoxide,” caused when wind blew the generator exhaust from the outside air back into the boat through small openings — a rare “phenomenon,” as testified to by Sea Ray’s expert. The sleeping passengers had the air conditioner running, powered by the generator.

A lower court jury found in favor of Sea Ray Boats and the case was dismissed. Plaintiffs appealed the case, claiming that the jury instruction provided did not properly advise the jury on what an “adequate warning” was for purposes of Nevada products liability law. (During jury “deliberation” the jury had asked for more specific instructions on what constituted an “adequate” warning. The lower court failed to give them additional direction other than to tell them to use their “common sense.”) The Appeals Court agreed with plaintiffs, vacating (canceling) the jury verdict and sending the case back to the lower court for a new trial, with orders to provide the jury with a proper instruction on “adequate warnings.” The Court found that the boat purchasers were warned about the dangers of carbon monoxide coming from exhaust fumes, but that questions of fact existed as to whether the warning were sufficient to warn them about the dangers of generator-driven carbon monoxide. The Court noted that under Nevada law …a product must include a warning that adequately communicates the dangers that may result from its use or foreseeable misuse. The Court held that the jury should have been instructed that an adequate warning in the context of products liability claims must be …1) designed to reasonably catch the consumer’s attention, 2) be comprehensible and give a fair indication of the specific risks attendant to use of the product, and 3) be of sufficient intensity justified by the magnitude of the risk.

Compare this with Cardenas v. 24 Hour Fitness, Inc., 2003 App. Unpub. Lexis 2680 (Cal. App., March 2003), where Rosario Cardenas was injured when she stepped onto a treadmill that spontaneously started moving, causing her serious injuries. Ms. Cardenas (plaintiff) filed (among other claims) a products liability claim against 24 Hour Fitness (defendant), claiming that they were liable for her injuries resulting from this defective product — that they failed to warn her …that the treadmill was malfunctioning. The fitness club asked the court to dismiss the case before trial (summary judgment) on the strength of a release form signed by Ms. Cardenas when she joined the fitness club. The lower court granted the club’s motion and dismissed the case.

The Appeals Court affirmed (agreed with) the dismissal, finding that the release was clear, unambiguous, and adequately informed Ms. Cardenas of the risks and the basis for her agreement to release the fitness club. The Court found: …undefinedecause machines naturally malfunction, using machines naturally involves a risk that they may do so…[w]hether the injury occurred because the machine was poorly maintained or it malfunctioned, those are risks that are reasonably related to using an exercise facility, and are plainly encompassed by the release.

The Sea Ray Boats case (like Ho Sports, Spring 2001 Law Review) illustrates the important “risk management” aspects of thoughtfully and pragmatically developing warnings and instructions for recreational products — and the legal implications otherwise! In addition, the case illustrates how difficult it can sometimes be to foresee the consequences. Note that in Sea Ray Boats, the purchasers sued the retailer for their injuries, and had not agreed to release the retailer from liability for injuries resulting from use of the boat. This is a typical scenario, for most recreational product purchasers do not enter into any release agreement when they purchase products. On the other hand, it can be typical, as in 24 Hour Fitness, for joining club members to enter into an agreement releasing a fitness club from liability for injuries that might result from the use of exercise equipment. It is unusual that Ms. Cardenas (in 24 Hour Fitness) did not dispute the release’s application to her products liability claims. In many jurisdictions, a release of liability cannot extend to release parties in the chain of distribution from their duties under products liability laws. It is also interesting that the case does not comment on the applicability of products liability laws to a “fitness club.” Generally, products liability laws apply to “sellers” of products: those individuals or entities in a product’s chain of distribution, such as manufacturers, distributors, retailers, lessors and dealers. Perhaps Ms. Cardenas simply failed to raise the issue. Lastly, Ms. Cardenas raised a rather strange “failure to warn” claim, in that it would be difficult for the club to warn her that a machine was going to malfunction. Again, probably because her claims were dismissed on the strength of the release, the Court did not discuss the strength of her products liability claim. Query, too, why she did not attempt to sue the exercise equipment manufacturer (in the same lawsuit) for the machine’s malfunction.

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This Law Review article was researched and written by:
Charles R. (Reb) Gregg and Cathy Hansen-Stamp