California State Warning Liability Survey
June, 2006
American Bar Association, Section of Litigation, Products Liability
2005-2006 State Warnings Liability Survey
State warning monograph - California
- SUMMARY
In California "a manufacturer or a supplier of a product is required to give warnings of any dangerous propensities in the product, or in its use, of which he knows, or should know, and which the user of the product would not ordinarily discover." Groll v. Shell Oil Co., 148 Cal App 3d 444, 448 (1983). Even if a product is flawlessly designed and manufactured, the manufacturer may still be held strictly liable for failing to provide an adequate warning. Persons v. Salomon North America, Inc., 217 Cal App 3d 168, 174 (1990). In order to prove a failure to warn claim, a plaintiff must show (1) defendant manufactured the product, (2) the product had risks that were known or scientifically knowable at the time the product was sold, (3) the potential risks posed a substantial danger to users, (4) ordinary consumers would not have recognized the risk, (5) defendant failed to adequately warn, (6) plaintiff's use or misuse of the product was reasonably foreseeable to defendant, (7) plaintiff was harmed, and (8) inadequate, or lack of warning was a substantial factor in causing plaintiff's harm. Cal Jury Instructions, 1-1200 CACI 1205.
- STATUTES
Cal. Civ. Code § 1714.45; Year most recently amended: 1998; Products Liability; consumer products known by consumers to be inherently unsafe: Exempts certain products which are known by the consumer to be inherently unsafe, such as sugar, alcohol, or butter, from liability in a product liability action. Explicitly does not exempt tobacco products.
- CASE LAW
Motus v. Pfizer, 196 F Supp 2d 984 (D Cal, 2001). Prescription drug manufacturer discharges duty if it warns physician of risks of any dangerous side effects it knows or has reason to know about, regardless of whether the warning reaches the consumer. Id. at 991. Failure to warn must be a substantial factor in plaintiff's injury. Id.
Wright v. Stang Manufacturing, 54 Cal App 4th 1218 (1997). Component part case in which plaintiff alleged failure to warn of alleged defect in 17-year-old component part. Id. at 1222. California courts will apply strict liability when a product, although faultlessly made, is defective because it is unreasonably dangerous to the consumer without a suitable warning. Id. at 1230. "Reasonableness of defendant's failure to warn is immaterial." Id. at 1231. In a negligent failure to warn case, the plaintiff must prove "a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care." Id. Strict liability will not attach if the dangerous propensity is obvious or known to the product user at the time the product was used. Id. at 1232. Misuse is a defense to a failure to warn claim only if the "misuse is the actual cause of the plaintiff's injury, not when some other defect produces the harm." Id. at 1235.
Maneely v. General Motors Corp., 108 F3d 1176 (9th Cir, 1997). Plaintiffs sued for injuries sustained while riding in the back of a pickup. Id. at 1178. Court stated "[t]o establish a failure to warn claim, a plaintiff must prove that the manufacturer had a duty to warn of the dangers arising from a foreseeable use of the product and that the breach of that duty was the proximate cause of the plaintiff's injuries." Id. at 1179. Lack of seatbelts is an obvious defect for which a manufacturer need not provide a warning. Id. at 1179-1180.
Carlin v. Superior Court, 920 P2d 1347 (Cal, 1996). Failure to warn claim against prescription drug manufacturer. Id. at 1347. A manufacturer of a prescription drug will not be liable for injuries caused by its drug "so long as it was properly prepared and accompanied by warnings of its dangerous propensities that were either known or scientifically knowable at the time of distribution." Id. at 1350. In applying failure to warn theories to prescription drugs, the fact-finder must determine "whether available evidence established a causal link between an alleged side effect and a prescription drug, whether any warning should have been given, and, if so, whether the warning was adequate." Id. at 1353. Because California applies the learned intermediary doctrine, "a pharmaceutical manufacturer may not be required to provide warning of a risk known to the medical community." Id. at 1354.
Persons v. Salomon North America, 217 Cal App 3d 168 (1990). Plaintiff sued for injuries sustained while skiing with incompatible boots and bindings. Id. at 170. The court noted, while strict liability does not usually consider the manufacturer's actions, strict liability for failure to warn does contain an element of reasonableness. Id. at 175. Factors for the fact-finder to use in determining reasonableness include "normal expectations of the consumer as to how the product will perform, degrees of simplicity or complication in the operation or use of the product, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury, and the feasibility and beneficial effect of including a warning[.]" Id. Where manufacturer has no effective way of communicating the warning to the ultimate consumer, such as where the ultimate user is unable to make an informed decision, "the manufacturer should be permitted to rely on downstream suppliers to provide the warning." Id. at 178.
Anderson v. Owens-Corning Fiberglass Corp., 810 P2d 549 (Cal 1991). Plaintiffs sued fiberglass manufacturers in strict liability for failure to warn of defects. Id. at 550. California courts require knowledge, actual or constructive, of the risk or danger posed by product before applying strict liability for failure to warn. Id. In a strict liability failure to warn case, "a defendant may present evidence of the state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture or distribution." Id. at 559.
- THIRD RESTATEMENT
The California Supreme Court has not commented on the Restatement of Torts, Product Liability 3d § 2(c) treatment of product warnings as "defects." Products are, however, considered "defective" if they have inadequate warnings.
- LANGUAGE
California does not require warnings in languages other than English for nonprescription drugs. Ramirez v. Plough, 863 P2d 167, 178 (Cal 1993). The Ramirez court did not decide whether a language requirement applies to other products.
- HEEDING PRESUMPTION
There is no liability for failure to warn where the instructions or warnings sufficiently alert the user to the possibility of danger. Aguayo v. Compton & Knowles Corp., 183 Cal App 3d 1032, 1042 (1986).
- INTERMEDIARY
The drug manufacturer's duty to warn is satisfied if the manufacturer gives adequate warning to the prescribing physician. Carlin v. Superior Court, 920 P2d 1347 (Cal 1996).
- SOPHISTICATED USER
California courts recognize a sophisticated buyer defense. Under that defense, manufacturers of components or raw materials have no duty to warn the ultimate consumer, "when goods or material they supply are not inherently dangerous, they sell goods or material in bulk to a sophisticated buyer, the material is substantially changed during the manufacturing process, and the supplier has a limited role in developing and designing the end product." Artiglio v. General Electric Co., 61 Cal App 4th 830, 839 (1998).
- STATUTES RE FEDERAL RULES
California statutes do not address the effect of federal warnings.
- PREEMPTION/PERSUASIVE FORCE BY FEDERAL RULES
California cases regarding preemption by federal law are too numerous to list. Practitioner is advised to search for mention of specific statute for preemptive effect.