What Good's a Warning if Nobody Reads It?

By Gerard Panaro, Howe & Hutton, WSTDA Legal Counsel

In the years I’ve been counsel to WSTDA, we’ve spent countless hours on the wording, graphics and layout of warning labels, like medieval theologians or Talmudic scholars poring over every word of Scripture. One recurring question has been: What if the intended recipient or beneficiary of the warning doesn’t read it? Can the manufacturer still be liable on a “failure to warn” or “defective warning” theory?

A welcome answer from the Supreme Court of Mississippi (remember, all products liability law is essentially state law) is no. In Palmer v. Volkswagen of America, Inc., 2005 WL 67525 (Miss., 2005), the court held that if plaintiffs are going to base their theory of liability on defective warnings, then they “must have read and relied upon the defective warnings to complain of them.”

Palmer was about as sad a case as can be imagined. Sixteen-year-old Anne Palmer and her 10-year-old sister went to buy a Coke, with the sister in the front seat and neither child wearing a seat belt. A minivan in front of the car that was immediately in front of them stopped suddenly. The car behind (and in front of the two girls’ car) braked to avoid hitting the minivan. Anne applied her brakes, but her car struck the rear end of the car in front, which then hit the minivan. The plaintiffs’ driver-side and passenger-side air bags deployed, causing only minor injuries to Anne, but inflicting severe injuries to her sister, who died.

The parents sued. One of their theories of recovery was that Volkswagen’s warning about air bags and children in the front seat of the car was inadequate. There were actually two warnings: one on the sun visor and the other in the owner’s manual. But the plaintiffs admitted that they never read either warning. They did not rely on any information in the owner’s manual. The plaintiffs argued that they did not have to prove that they read the warnings to state a claim; Volkswagen argued that to argue reliance when one never read the warning didn’t make sense.

Both parties are “partially correct,” the Mississippi Supreme Court said: “that is, reliance on the manufacturer's warning may, or may not, be an element of an inadequate warnings case.”

The court explained: if the claim is that a warning which should have been given was not given, then obviously the plaintiff need not show reliance on the warning. The essence of such a case is the absence of a warning, “and a plaintiff can certainly not be expected to show reliance on a warning which was not given.”

But, the court went on, if the plaintiff’s argument is that a warning was defective, then he or she must prove that s/he “read and relied upon the defective warnings to complain of them.”

To bolster its holding that to prove a claim of inadequate or defective warning, the plaintiff must prove that s/he read the warning, the Mississippi Supreme Court cited decisions from four other states, all to the same effect:

Arkansas. The Arkansas Supreme Court affirmed summary judgment for the defendant manufacturer. The court found an absence of causality based on the plaintiff’s testimony that he had not read a label on a cleaner in over three years, and that any different or improved warning would have been futile and would not have prevented the injuries which the plaintiff sustained.

Louisiana. The Louisiana Court of Appeals affirmed a verdict for the manufacturer defendant because the father of the 12-year-old injured child testified that he did not read the warnings contained in the owner’s manual, and that he routinely failed to read warnings provided with products.

In another Louisiana case, the Louisiana Supreme Court held that even an improved warning or set of instructions would have been futile and would not have prevented the injury, where the plaintiff had not read the warning provided in the automobile operator’s manual before parking his car over combustible materials.

New Jersey. An appellate court affirmed a judgment for the defendant manufacturer where, even though it provided an inadequate warning, there was inadequate evidence that warning had ever been read.

Texas. The Supreme Court of Texas reversed a jury verdict for the plaintiff, finding no evidence that the inadequacies in the manufacturer’s warning caused the accident. The evidence indicated that the driver ignored the warning plate attached to the doorjamb and the warning contained in the owner's manual.

In the Palmer case, Volkswagen provided warnings regarding the air bags in two places: on the sun visors and in the owners’ manual. “Having not read the manual,” the court said, “the Palmers would not have ‘noticed and heeded an alternative warning,’ an adequate warning, the picture [of a child in a safety restraint seat in the front seat of the car], or anything else in the manual.” The court went on: “The presence or absence of anything in an unread owner’s manual simply cannot proximately cause a plaintiff’s damages.” “The plaintiffs in this case did not read the manual at all. Thus, they hardly can claim to have been harmed or misled by it.” The court also noted that the jury in the case rejected the plaintiffs’ inadequate warnings claim, including their claim that the sun visor warning was inadequate.

To summarize, therefore, in defending against an inadequate or defective warnings claim, if you can prove that the plaintiff never read the warning, it won’t matter what the warning said or failed to say.

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