When we think of defective products, we usually picture something that is poorly designed or inadequately manufactured. However, a product can also be considered defective if a company does not adequately inform consumers about its safe use. 

Insufficient instructions or warnings are an example of a marketing defect, where failing to properly communicate with consumers poses potential risks. This type of defect can occur even if the design and manufacture of the product are not defective.

Failure to warn is a legal principle that may come up in products liability claims. This principle holds that consumers have a right to be informed about any potential hazards or risks so they can make informed decisions when using a product or choosing whether to buy it.

What responsibility does a company have to warn consumers about risks?

Since some products may present inherent dangers associated with the normal and foreseeable use of a product, companies that manufacture and sell products have a duty to warn consumers about them.

A company can be held liable in a personal injury claim if they do not provide sufficient instructions on how to use a product, as well as warnings about any potential risks. In these claims, a plaintiff must show that inadequate instructions or warnings contributed to their unsafe use of the product, which resulted in their injury.

Some examples of failure to warn include:

• Failing to update warnings with new information on potential hazards
• Failing to include labels or instructions warning about potential hazards
• Failing to warn about risks that may not be obvious to the consumer
• Using unclear or ambiguous language in instructions or warnings
• Omitting important information, including instructions on the proper storage, maintenance, and disposal of a product
• Improper placement of a warning label, such as locating it where it cannot easily be seen or only including the warning in the instruction manual or on packaging materials

Who can be held responsible for failure to warn?

Creating a product and bringing it to consumers requires a chain of distribution. When a product causes injury due to inadequate instructions or warnings, one or more of the following could be to blame:

Manufacturers

Companies that design and manufacture products are responsible for assessing the potential risks of a product and providing clear instructions and warnings about how to use the product safely. 

Distributors

If a manufacturer uses a separate distribution company to deliver its products to consumers, this company may have a duty to communicate potential risks to a retailer or directly to a consumer. 

Retailers

Retailers may be held liable for failure to warn if they do not make consumers aware of a product’s potential risks, do not provide products with updated warnings, or do not warn a consumer that they have modified a product in a way that introduces new risks.

Other parties can also be held responsible for failing to warn about risks, including wholesalers and suppliers. Individuals who are selling a used item generally have more limited liability but can still be held responsible if they do not warn a buyer about known defects or dangers.

Can a manufacturer still be liable if they were unaware of a risk?

Yes. Being unaware of a risk is not an acceptable defense since manufacturers have the responsibility to identify and address potential hazards before a product becomes available to consumers.

Manufacturers must go through a quality control process, including researching and testing products, to identify potential risks and make consumers aware of them. This responsibility continues after the product goes to market, as manufacturers are expected to do post-market surveillance, collect and analyze data, assess consumer feedback, and make reports to regulatory agencies. This process allows them to note any safety concerns and address them.

If a safety issue does come up after a product goes to market, a manufacturer must take reasonable actions to address it. This could include issuing a product recall and communicating with the public, as well as others in the distribution chain, about recommended actions.

When is a warning necessary?

Manufacturers aren’t expected to warn about every single scenario where the use of their product could cause injury, although they may seek added liability protection by including seemingly common sense precautions. This is why you occasionally see warnings as obvious as a jar of peanut butter with the label “Warning: contains nuts.” 

In addition to providing instructions and warnings about the safe use of their product and potential risks involved in its use, manufacturers must provide warnings about the foreseeable misuse of their product. This typically addresses hazards associated with mistakes that a consumer could easily make, such as incorrectly installing a child’s car seat. Manufacturers must also advise when a product creates greater risks for certain consumer groups, such as young children or pregnant women. 

A manufacturer is not expected to provide a warning if a risk is obvious or common knowledge. For example, a cutlery manufacturer doesn’t need to include a warning label on each of its knives advising that they are sharp since consumers will be aware of this fact. Warnings are also not required for simple or common objects where normal use does not create any foreseeable risks.

Let’s review your case

If you have questions about a products liability claim, set up a free consultation with the team at Anderson Trial Lawyers today. Contact us online or call 860.886.8845.

A visit to the playground offers children a chance for a fun day outside. Unfortunately, these visits sometimes end with a trip to the emergency room.

Studies have shown that more than 200,000 children in the United States go to the hospital each year with injuries sustained on the playground, such as concussions or severe lacerations. Broken bones resulting from a fall are the most common injury, and the majority of those injured are ages nine and under.

If your child was injured in a playground accident, you may be able to file a personal injury claim to receive compensation for their medical bills and other costs. These claims can be very complex, and a skilled attorney can provide helpful assistance. In this blog, we’ll explore some of the legal issues that may arise from a playground injury.

Premises liability

Playgrounds can be found at numerous different places, including schools, parks, day care centers, campgrounds, churches, and private homes. No matter who owns the playground, they have a responsibility to keep it safe. A claim against someone in control of a playground must demonstrate that the defendant failed to make sure the playground was reasonably safe to use. An injury may be caused, or worsened, by the following conditions on the premises:

Poor maintenance

The playground owner has a duty to regularly inspect it for any potential safety issues, such as broken equipment or unsafe surfaces. They also have a responsibility to repair these problems in a reasonable amount of time. If the property owner fails to take these steps, they can be held responsible.

Lack of hazard warnings

When a playground hazard is present, the playground owner must take steps to keep visitors away from it until it can be addressed. If they don’t take reasonable steps to warn others, such as putting up barriers or signs, they can be held liable for injuries resulting from the hazard.

Inadequate safety and security measures

The playground owner must take steps to ensure that the premises are safe and secure, especially if there are known issues at the site. Precautionary steps might include putting up fencing to prevent children from walking into a nearby street or installing lights if the playground can be used in the evening.

Products liability

You may also be able to file a claim against those responsible for designing, manufacturing, or constructing the playground. A products liability claim can be filed if one of the following scenarios occurred: 

The playground is poorly designed or constructed

Playgrounds must be designed to endure various weather conditions and heavy use. They must also include adequate safety features and be appropriately designed for a specific age range. If there was a design flaw that made the playground inherently unsafe, it can contribute to injuries. If a defective product causes injury, a product seller may be responsible for damages.

Even if a playground is properly designed, errors or flaws in the production process can create unsafe conditions that contribute to injuries. If a manufacturer becomes aware of such a defect, they must issue a timely recall notice and provide proper notification to make the playground owner aware of any potential hazards. Manufacturers can also be held liable if they use substandard materials or other practices that compromise the safety of the playground.

Errors in the construction or installation of a playground can also contribute to injuries. These might include structural instability, loose components, and the exposure of sharp fasteners like screws and bolts.

Regulatory non-compliance

Playgrounds must comply with safety standards and regulations governing playgrounds. These standards can include federal, state, or local codes. Any parties that don’t abide by these standards can be held liable if this non-compliance is a substantial factor in causing an injury.

Failure to warn

Playground equipment usually includes labels warning visitors about certain inherent risks in using the playground. If the manufacturer fails to provide adequate information about potential safety risks, they can be held liable for an injury.

Negligent supervision

Parents have a duty of care to supervise their children at playgrounds, look out for potential hazards, and take reasonable steps to prevent injuries. This duty also extends to adults who supervise children “in loco parentis,” or in place of the parents, such as teachers and day care staff.

The playground owner can be held liable if a staffer did not properly supervise children using the playground. Negligent supervision may include not addressing a safety hazard, failing to stop dangerous behavior, or being absent or distracted when the injury occurs. It can also include the failure of the playground owner to hire qualified staff, maintain adequate staffing levels, provide proper training, or establish proper policies and procedures.

Negligent supervision can sometimes be challenging to prove, as the plaintiff must show that the defendant failed to act reasonably and did not provide an adequate standard of care. This factor can also be less applicable in claims involving older children, who are generally expected to exercise better judgment and not require close supervision.

Other considerations

Depending on the circumstances of the accident, several other issues can come into play when a child is injured on a playground. These might include:

Governmental immunity

Publicly owned playgrounds, including those at schools or parks, have greater protection from legal claims due to government immunity. This protection aims to prevent legal actions against government entities. However, there are certain exceptions to this immunity, which must be investigated to defeat a governmental immunity defense.

Trespassing

There may be clear signs indicating that a playground is not used at certain times, such as after sunset or outside of school hours. If an injury occurred outside of these hours, the defendant may argue that the plaintiff was trespassing and therefore not owed the same duty of care owed to users during normal hours. However, property owners are still responsible for keeping the property in good repair and owe a greater duty of care to children (see below).

Attractive nuisance precautions

Property owners must take precautions to prevent foreseeable harm children may suffer due to property features that may attract children. For example, the owner of a private playground has a duty of care to put up fencing or other deterrents to prevent its unsupervised use.

Shared fault

A defendant may argue that you share some of the fault for your child’s injury. For example, if a child is injured due to unsafe equipment but you were not supervising them at the time they were hurt, the defendant can argue that you were partially to blame. This can result in a reduction in the award received in a settlement or verdict.

Let’s review your case

Personal injury claims involving playground injuries can be complex. If your child has been injured in a playground accident, the attorneys at Anderson Trial Lawyers will sit down with you to discuss the circumstances of the accident and how you might proceed with a claim, and conduct the needed investigation to pursue a claim. Contact us online or call 860.886.8845 to set up a free consultation.