What is a failure-to-warn claim?

A manufacturer has the duty to make its products as safe as possible. When it cannot eliminate all risks, it must warn users and buyers of the dangers that exist. If it fails to provide adequate warnings, the person injured because of that failure may have a products liability claim based on failure to warn.

Warnings must be provided for any dangers likely to arise when the product is being used normally or in a way that could reasonably be anticipated, even it if is not a purpose for which the product was sold. A consumer who clearly misuses a product, however, cannot recover under a failure-to-warn theory or any other products liability theory. Also, warnings are usually not required for a product’s very obvious dangers.

Certain products, like prescription drugs, present unavoidable dangers. The duty to warn consumers about unavoidable dangers presents special problems. Manufacturers must provide warnings about possible side effects of such drugs, including allergic reactions, but there may be no duty where unusually susceptible consumers are concerned.

The manufacturer’s duty to warn continues even after the product is sold. As new information becomes available, such as through consumer complaints or scientific testing, the manufacturer or seller must update its warnings to purchasers, either through direct contact or, if that is not possible, through mass media publication.

A failure-to-warn claim can be in the nature of a negligence or a strict liability claim, depending on the facts of the particular case and the law of the state in which the claim is made.