The Duty to Warn

While Antonio Carrizales was helping in an automobile repair garage on South Western Avenue, he slipped on gasoline that splashed all over him.

He went to the shop's washroom to rinse his eyes; but before he could even turn on the water, flammable vapors from his gasoline-soaked clothes were ignited by a flame in a nearby hot water heater. Carrizales suffered severe burns and disfigurement.

He brought an action against the hot water heater manufacturer on several counts. The trial court entered partial summary judgment and dismissed part of plaintiff's complaint. On appeal, Carrizales raised several issues, including defendant's duty to warn and defendant's continuing duty to warn. Carrizales v. Rheem Manufacturing Company, Inc., 226 Ill.App.3d 20, 589 N.E.2d 569 (1st Dist. 1991).

The court made a distinction in these two types of duties, holding that the defendant manufacturer has a duty to warn plaintiff of the flammability dangers that were not open and obvious. The court, however, was reluctant to find a continuing duty to warn "against a hazard discovered subsequent to the time it left the manufacturer's control." Id., at 35.

As the rate of technological advancement escalates at a rapid pace, courts in Illinois and elsewhere struggle with the concept of a duty to warn.

In a product liability action, the courts traditionally impose on a manufacturer a duty to warn of a particular hazard when there is unequal knowledge, either actual or constructive, and the defendant knows or should know that injury may occur if no warning is given.

But the courts seem to have more difficulty with the idea of a continuing duty to warn, a concept first recognized in Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959), which involved an automobile with a defective braking system. General Motors instructed dealers to make replacements on the 1953 Buicks brought into their shops but failed to take steps to warn all purchasers generally of the possibility of this dangerous latent defect. The court held such failure was unreasonable conduct.

A few years later, the court in Noel v. United Aircraft Corp., 342 F.2d 232 (3d Cir. 1964), held a continuing duty to warn existed in a case involving a defective propeller system that caused a plane crash. The court went a step further and found that the manufacturer also has an affirmative duty to keep abreast of significant developments impacting its products' areas and to develop safer devices.

Illinois recently considered the issue of a continuous duty to warn in a highly publicized medical malpractice case. In Proctor v. Davis, 291 Ill.App.3d 265,682 N.E.2d 1203 (1st Dist. 1997), a patient sued his ophthalmologist and the drug manufacturer for strict liability based on injuries when corticosteroid was injected directly into his left eye, ultimately leading to its surgical removal. A jury found the doctor was not liable but held the drug manufacturer liable and awarded Proctor $3 million in compensatory damages and $124 million in punitive damages, which was later remitted to $3 million.

The court found that the drug manufacturer has a continuous duty to warn physicians of the dangers incident to prescribing drugs, to keep abreast of scientific developments dealing with its products and to notify the medical profession of any additional side effects discovered from its use.

In Proctor, defendant Upjohn tried to exonerate itself by contending it was waiting for sufficient proof of a cause-effect relationship before alerting the medical profession of the possibility of a serious risk. However, the court found that Upjohn knew of potential adverse reactions to the drug for years before the incident in question.

The courts consider a number of factors in determining whether to find a continuing duty to warn exists. Among those factors are the gravity of the injuries of number of deaths, the knowledge of the manufacturer, the nature of the market and the industry, the length of time since the initial sale, the effectiveness or significance of the safety device, as well as its costs.

The 7th U.S. Circuit Court of Appeals also has followed the trend to recognize a continuing duty to warn or retrofitting the product when a loss of life is involved. Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311 (7th Cir. 1983). This case, coming out of the Eastern District of Wisconsin, involved severe injuries resulting from a defective oil circuit breaker system The appeals court, however, distinguished this product from mass-produced item where warning consumers may prove unwieldy.

The issue of mass-produced products found in every home - lawnmowers, snowblowers, household tools - represents the next frontier involving a continuing duty. Technology for many of these products is evolving, as is the obvious nature of the hazards associated with these products and the concomitant duty to warn.

After learning of problems with such a product, manufacturers redesign, manufacture and market the new product but don't recall or warn consumers _ unless forced to do so under federal regulations _ because of the enormous potential liability risks and costs.

Certainly, public policy considerations drive the concept of a continuing duty to warn. The bottom line, though, must remain: Is the law effective in keeping dangerous products off the market and out of the hands of unsuspecting consumers, especially after known problems develop?

Despite the profit-maximization goals of corporate America, the answer must always be a resounding "yes."