WPI 110.03 Manufacturer's Duty to Provide Warnings or Instructions With Product
6 WAPRAC WPI 110.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 110.03 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part IX. Particularized Standards of Conduct
Chapter 110. Product Liability
WPI 110.03 Manufacturer's Duty to Provide Warnings or Instructions With Product
A manufacturer has a duty to supply products that are reasonably safe.
A product may be not reasonably safe because adequate warnings or instructions were not provided with the product.
There are two tests for determining whether a product is not reasonably safe because adequate warnings or instructions were not provided with the product. The plaintiff may prove that the product was not reasonably safe because adequate warnings or instructions were not provided with the product using either of these two tests.
The first test is whether, at the time of manufacture:
(1) the likelihood that the product would cause injury or damage similar to that claimed by the plaintiff, and the seriousness of such injury or damage, rendered the warnings or instructions of the manufacturer inadequate; and
(2) the manufacturer could have provided adequate warning or instructions.
The second test is whether the product is unsafe to an extent beyond that which would be contemplated by an ordinary user. In determining what an ordinary user would reasonably expect, you should consider the following:
(1) the relative cost of the product;
(2) the seriousness of the potential harm from the claimed defect;
(3) the cost and feasibility of eliminating or minimizing the risk; and
(4) such [other] factors as the nature of the product and the claimed defect indicate are appropriate
[A product can be “not reasonably safe” even though the risk that it would cause the plaintiff's harm or similar harms was not foreseeable by the manufacturer at the time the product left the manufacturer's control.]
If you find that the product was not reasonably safe because adequate warnings or instructions were not provided with the product and this was a proximate cause of the plaintiff's [injury] [and] [or] [damage], then the manufacturer is [subject to liability] [at fault].
NOTE ON USE
Use this instruction if there is a claim against a manufacturer that the product was not reasonably safe because adequate warnings or instruction were not provided with the product. If only one of the two tests is being used by the court, modify the instruction accordingly.
Use bracketed material as applicable. Use the bracketed paragraph concerning foreseeability when there are claims of negligence as well as strict liability or when foreseeability concepts have otherwise been injected into the trial. The bracketed “at fault” language is intended to be used in conjunction with WPI 110.31.01.02 (defining “fault”) and with WPI 110.31.01.01 (the corresponding special verdict form) for cases involving mixed standards of care (e.g., negligence and strict liability); see the Notes on Use and Comments for WPI 110.31.01.01 (the corresponding special verdict form) and WPI 110.31.01.02 (defining “fault”).
Use WPI 110.04 (Seller—Manufacturer—Defined) with this instruction.
Use either WPI 110.21.01 (Burden of Proof—Duty to Provide Warnings with Product—No Affirmative Defense) or WPI 110.23.01 (Burden of Proof—Duty to Provide Warnings With Product—Assumption of Risk or Contributory Negligence) with this instruction.
The statute. RCW 7.72.030(1) states in part that a “product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product … was not reasonably safe because adequate warnings or instructions were not provided.”
In Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 282 P.3d 1069 (2012), the court held that manufacturer of respirators had a duty to warn users of the product of a need to take precautions when cleaning the units in order to avoid exposure to asbestos and other harmful substances which had been captured in the filtering. See also Woo v. Gen. Elec. Co., 198 Wn.App. 496, 393 P.3d 869 (2017) (duty to warn—exposure to asbestos-containing components manufactured by others).
The Washington Product Liability Act (WPLA) provides two different ways for plaintiffs to prove inadequate warnings. First, the plaintiff may use the balancing-test approach from RCW 7.72.030(1)(b), which provides that:
A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.
Second, the plaintiff may show under RCW 7.72.030(3) that the product “was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.” See Kirkland v. Emhart Glass S.A., 805 F.Supp.2d 1072, 1076–77 (W.D. Wash. 2011).
The balancing-test approach of RCW 7.72.030(1)(b) and the consumer-expectations approach of RCW 7.72.030(3) are alternative, independent means of proving inadequate warnings. A plaintiff needs to prove only one, not both, of these alternatives. Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 765–66, 818 P.2d 1337 (1991).
Balancing test—Factors. The court in Ayers characterized the factors in the balancing test as follows:
[O]n one side of the balance in subsection (b) are the likelihood that the product would cause the claimant's harm or similar harms and the seriousness of those harms. On the other side of subsection (b)'s balance are the adequacy of the warnings that were provided and the ability of the manufacturer to have provided an alternative warning that would have prevented the injury.
Ayers, 117 Wn.2d at 763.
Balancing test—Strict liability. The balancing-test approach of RCW 7.72.030(1)(b) is based on the strict liability principles expressed in Seattle-First National Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975). Ayers, 117 Wn.2d at 761–65. As such, foreseeability is not an element of the balancing test for a failure-to-warn claim. Ayers, 117 Wn.2d at 764–65.
Balancing test—Proof of alternative warnings. The language of RCW 7.72.030(1)(b), which requires the trier of fact in a failure to warn case to consider whether “the manufacturer could have provided warnings or instructions which the claimant alleges would have been adequate,” does not require the claimant to establish the exact wording of the alternative warning. The statute's requirement is satisfied if the claimant specifies the substance of the warning. Ayers, 117 Wn.2d at 755–56.
Consumer-expectations test. See Comment to WPI 110.02 (Manufacturer's Duty—Design).
Comment k—Unavoidably unsafe products. See related discussion in the Comment to WPI 110.02 (Manufacturer's Duty—Design) (discussing comment k of Restatement (Second) of Torts § 402A). In Ruiz-Guzman v. Amvac Chemical Corp., 141 Wn.2d 493, 7 P.3d 795 (2000), the Washington Supreme Court incorporated comment k into the WPLA. Comment k has most often been applied to prescription drug and medical products cases. Strict liability, not negligence, is the standard to be applied in comment k cases based on a theory of inadequate warnings. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 389 P.3d 517 (2017).
Learned intermediary doctrine. In prescription drug and medical products cases, if adequate warning has been given to the prescribing health care provider, often a physician, the seller or manufacturer usually has no duty to warn the ultimate user. Terhune v. A.H. Robins Co., 90 Wn.2d 9, 577 P. 2d 975 (1978) (prescription medical product); Wash. State Physicians Ins. Exch. v. Fisons Corp., 122 Wn.2d 299, 858 P. 2d 1054 (1993) (prescription drug). In such cases, the WPI Committee recommends that “ordinary [physician] [healthcare provider] user” be substituted for “ordinary user”. If the manufacturer provides information directly to the consumer, as in a user manual or promotional materials, the manufacturer may assume the duty to provide adequate warnings directly to the user. Restatement (Second) of Torts § 324A. See Luttrell v. Novartis Pharmaceuticals, 894 F.Supp.2d 1324 (E.D. Wash. 2012), affirmed, 555 F.App'x 710 (9th Cir. 2014), for an extended discussion on the learned intermediary doctrine and the application of proximate cause in the context of a claim of inadequate warnings.
The learned intermediary doctrine has occasionally been applied to cases not involving prescription drugs or medical products. In Lunt v. Mount Spokane Skiing Corp., 62 Wn.App. 353, 814 P.2d 1189 (1991), the court held that the manufacturer of ski bindings met its duty to warn under RCW 7.72.030(1) by providing detailed warnings to the operator of the ski area. The Lunt court noted that the manufacturer had a reasonable basis to believe that the ski area operator would pass along those warnings. The court also noted that a ski binding manufacturer who makes bindings for rental use has limited opportunities to communicate directly with the consumer.
Duty to warn hospital-purchaser. A medical product manufacturer has a duty under the WPLA to provide adequate warnings to a hospital-purchaser of medical products. This is separate from and in addition to the manufacturer's duty to warn physicians under the learned intermediary doctrine. As stated in Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 759, 389 P.3d 517, “[h]ospitals have an independent duty to ensure that a device is used safely. They can meet that duty only if they are informed of the risks of using a device.” Taylor, 187 Wn.2d at 754. In addition, “hospitals need product warnings to design a credentialing process that will keep patients as safe as possible.” Taylor, 187 Wn.2d at 755.
Sophisticated purchasers. The Washington Supreme Court has rejected a “sophisticated user” approach that would modify a duty to warn. Rublee v. Carrier Corp., 192 Wn.2d 190, 207–08, 428 P.3d 1207 (2018). There is one exception to this general rule. In the context of pharmaceuticals or medical devices, Washington does not differentiate between the types of users or consumers to whom a duty to warn is owed. Rublee, 192 Wn.2d at 208.
Duty to warn under common law. The following discussion relates to the law on warnings prior to RCW 7.72.030(1)(b). RCW 7.72.020 provides that “the previous existing applicable law of this state” on product liability is modified only to the extent set forth in RCW Chapter 7.72. The cases below should be carefully studied with the new statute in mind.
The duty to warn exists, even if the danger is unknown to the supplier and the product has been faultlessly manufactured and designed, if it is not reasonably safe when used in the absence of warnings. Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 570 P.2d 438 (1977). When the danger is obvious or known, there is no duty to warn. Haysom v. Coleman Lantern Co., 89 Wn.2d 474, 573 P.2d 785 (1978).
In Little v. PPG Industries, Inc., 92 Wn.2d 118, 594 P.2d 911 (1979),the court approved instructions that set out several aspects of the duty to warn, including advising of the nature of the danger, the seriousness of the consequences of improper use, and measures to take to avoid the danger. The court does not need to furnish guidelines to aid the jury in determining whether the warning is adequate in a case when the danger is not clearly latent. Berry v. Coleman Sys. Co., 23 Wn.App. 622, 596 P.2d 1365 (1979). The adequacy of warnings to minors who use dangerous products is discussed in Baughn v. Honda Motor Co., 107 Wn.2d 127, 727 P.2d 655 (1986), and Novak v. Piggly Wiggly Puget Sound Co., 22 Wn.App. 407, 591 P.2d 791 (1979).
The fact that the user knew of the dangerous condition, thus eliminating the need for a warning, does not, of itself, absolve the manufacturer of liability for defective design. Lamon v. McDonnell Douglas Corp., 19 Wn.App. 515, 576 P.2d 426 (1978), affirmed, 91 Wn.2d 345, 588 P.2d 1346 (1979).
[Current as of January 2021.]
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