Failure to Warn
Richard J. McAlpin of McAplin and Brais of Miami Fl delivered this presentation.
He generally represents the defense (manufacturer) in product liability issues.
His talk focused on "Failure to Warn" resulting in personal injury and a suit against someone.
Just about anybody who had contact with the product can be sued: manufacturers, suppliers, dealers, distributors, rental yards, even leasors.
He began by trying to frame where failure to warn fits into the entire product liability picture.
There are two general theories advanced in product liability:
You have no duty to warn of open and obvious dangers (judges sometimes let the jury decide what is open and obvious). The most obvious cases will be stopped by the judge.
You also have to warn of foreseeable alterations (removing guards, safety switches, etc,)
Elements of an effective warning
Two standards are heavily used by the boating industry in the creation of warnings. ABYC Technical Bulletin T-5 (based on SAE J-284 standard) and ANZI Z-535.
When drafting warnings, simplicity and common sense should be used.
Use affirmative direct language (Do Not Remove Cover) and avoid the use of contractions.
Avoid using too many warnings. Warning labels should be located near the hazard. Warnings should be durable (last in outdoor sun and weather)
Your duty to warn extends to 2nd and 3rd owners and on down the line.
The owners manual is a great way to convey your warnings. However; it often does not follow the boat through multiple owners. You can put a plaque on the unit saying manuals are available.
RBBI Note: in the e-business session, Stingray mentioned they are in process of putting their manuals online including the accessory manuals.
Minimal warnings are required on a very simple product.
Evaluating Adequacy of Warnings:
Two fishermen died from sulphur dioxide they used to process fish.
A claim was made that no one told them of the danger. The chemical had a warning saying it could mix with water and release toxic sulphur dioxide gas. The warning was ruled inadequate.
You need to evaluate the adequacy of warnings. What procedure did the manufacturer use in designing the warning provided? You are better off if you discussed it, bounced ideas off the customers, etc.).
The Coast Guard has few standards for boats. ABYC created voluntary standards that hold up well in the courtroom. Plus, the courts will hold you to them. They are the only measure the judge and jury have. If you cannot comply with the ABYC guidelines, you need to document why they were not followed.
Safer Alternative Design Theory
This recent theory says you can't protect a lousy design with warnings. You will be held liable if a better way exists.
Post Sale Warnings
You have a duty to warn if a hazard comes to your attention after the sale.
You only have this duty if you can identify and effectively communicate with the person to whom a warning may be provided.
Also, you only have to warn the user if they are not aware of the risk.
There are still several open questions regarding post sale warnings.
Defenses to suits in this area are the same as those in point of sale warnings, plus "state of the art". You can say you used the state of the art at the time the unit was manufactured, now it is many years later.
Owner was 29 years old, had been in air force and had been trained in diesel mechanics. He claimed he did not get the manuals.
Owner originally won the case, but award was later reduced 40% on appeal based on his prior knowledge.
Lawsuit alleged Bayliner failed to effectively design the boats centerboard trunk hole through which a rope runs to raise and lower the retractable centerboard keel, somewhat like a pocketknife.
Bayliner had recognized the hazard after the sale and conducted a retrofit campaign. No incidents of the problem resulting in injury were reported before this case.
Jury ruled the product was not defective, no duty to warn existed.
You must meet the labeling requirements of the country you sell the product in.
If the product was initially sold in the U.S. and later sold abroad, there is some question about liability.
Some countries have low literacy levels. Pictorials can be very important in those situations.
A new drain plug that provided an audio alarm when it was not "in" was shown at this show. Since it seems safer, will it now be required?
Not required right now. Widespread use and the courts will determine that.
Can you elaborate on the Federal Preemption given to prop guards?
The U.S. government considered the issue, had panels and studies. They reached a decision. Guard are not required by law.
International Liability Issues?
One international gentleman in the audience said his country has direct liability. You only have to prove you were injured by the unit and the manufacturer is liable.
Receiving and Owners Manual
Some companies now make you "sign off" that you received an owners manual.
! WARNING. These notes lack completeness and may contain errors.
Following them may cost you a lawsuit.
Do Not take them as professional advice.
Contact Mr. McAlpin or other professionals if you need assistance in this area.
The session was about as interesting as a session of this nature can be. Mr.Mc Alpin did a great job in organizing the material, plus he is a pretty good presenter.
He covered a lot of material, including several case examples I failed to post at this time in the interest of trying to post the entire Boating Week coverage as soon as possible. His handout includes the actual legal references to several cases.
At the close of several sessions, presenters said that if we would give them a business card, they would send us a printed copy of their presentation. I received Mr. McAlpin's presentation in just one week and am still waiting for all the rest. A big thanks to him for putting this material together, presenting it at the conference and for promptly sending me a copy.
If you have further questions, you can reach his firm at: email@example.com
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