AREAS OF INTEREST: Product Liability – “continuing or post-sale duty to warn.”
LEGAL IMPACT: The N.H. Federal District Court predicts that New Hampshire Supreme Court would impose a post-sale continuing duty to warn on manufacturers under a strict liability theory in product liability cases.
CASE CAPTION: Melissa Jenks, individually and as g/n/f of Roderick Jencks v. New Hampshire Motor Speedway, et al, United States District Court, District of New Hampshire, 09-CV-205-JD (04/23/12) (J. DiClerico)
The plaintiff was seriously injured when he fell from the back of a golf cart while it was being used at the New Hampshire Motor Speedway during the race weekend in July of 2006.
The golf cart was originally sold by Textron in 1997, but was subsequently repurchased and then resold by Textron to its authorized dealer, A.B.L., Inc. in 2001. A.B.L. leased the cart, along with several others, to the Speedway for use during the race weekend. The only warning provided by Textron about riding on the back of the cart was a decal located on the dashboard, which was not visible to a person riding on the back.
The parties presented evidence showing that Textron was aware of the danger of riding on the back of the cart when the cart was sold, and that after selling the cart it received additional information about that danger, including a letter from an attorney representing the family of a person who was killed when he fell off a Textron golf cart in 2003. In addition, Textron began putting warnings on the back of its golf carts in 2008.
The plaintiff and remaining defendants sought a ruling that they were entitled to introduce evidence and the jury would be instructed that a product manufacturer has a continuing duty to warn after it sells a product.
The court acknowledged that the New Hampshire Supreme Court has not decided whether a manufacturer has a continuing, post-sale duty to warn, but stated that where there is no governing precedent a federal court is required to predict how the issue would be decided by the Supreme Court.
Under the Restatement: PL § 10 (1998), a seller or distributor is liable for damages caused by “the seller’s failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller’s position would provide such a warning.” The court also noted that the Supreme Court, while not directly addressing the continuing duty to warn issue, has in an earlier case “assumed it to be a valid theory.”
The court observed that other jurisdictions addressing the issue have concluded, under both strict liability and negligence causes of action, that the seller or manufacturer of a defective product has a continuing or post-sale duty to warn of the defect, at least when it would be reasonable to provide such a warning. Whether a reasonable person would provide such a warning depends on proof that: 1) the seller knows or reasonably should know of the substantial risk of harm; 2) those to whom the warning should be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; 3) a warning can be effectively communicated to and acted on by those to whom the warning is provided; and 4) the risk of harm is sufficiently great to justify the burden of providing a warning. In deciding whether a claim based on breach of a post-sale duty to warn should be submitted to the jury, the court must determine whether these four factors are supported by proof.
Although the court found that it was not necessary to predict whether the Supreme Court would find a continuing duty to warn under a negligence theory, it ruled that such a duty would be recognized under § 10 of the Restatement as a strict liability claim. The court then analyzed the four factors against the facts and concluded that there was a sufficient showing to allow the parties to introduce evidence based on the continuing duty to warn theory during the trial.