Short Answer: The duty to warn is an idea in negligence law. Negligence is the legal word for carelessness.

The duty to warn doctrine says that if you create a danger, you have to warn people who might be hurt by it.

If you don’t warn them, you are being careless, what the law calls negligent.

If you’re found negligent, under the law you could have to pay for any property damage or bodily harm caused by the danger you created and didn’t warn people about.

For example, when asbestos companies sold products containing asbestos, they knew the products could lead to health problems, including cancer. But they didn’t add a warning label, or inform employees and consumers of the risk.

That’s why judges and juries decided the asbestos companies were legally responsible for “failure to warn”, and courts ordered them to set up bank accounts to compensate people that were not warned about the dangers of asbestos.

Negligence, failure to warn, and the duty of care

Negligence is described as a “breach” of a “duty” owed to another person. 

One of the most common torts is negligence. Negligence is a legal term for carelessness. In general, people have a duty of care (a legal requirement to be careful) if their behavior will impact other people.

Legal duty is the lynchpin of a negligence case. If the defendant didn’t have a duty, the victim/plaintiff’s case collapses.

Example: Most drivers in the United States have a duty of reasonable care. They must avoid accidents whenever possible, obey traffic laws and speed limits and always drive defensively. Drivers who do not drive safely are breaching their duty of care to other drivers and pedestrians.

If that carelessness – that negligence on the road – causes an accident, the negligent driver is usually responsible for all the property damage and bodily injury that results.

The Duty of Care includes a “duty to warn” people of known dangers.

The Duty To Warn: Some dangers cannot always be avoided.

Not all dangers can be avoided. Most tort laws recognize this reality. But when something involves risk that cannot be avoided, the law requires that people be warned of the risk. 

That way people are choosing to expose themselves to risk knowingly.

Example: When maintenance workers do repairs in the sewer, they sometimes need to leave a manhole uncovered. So maintenance workers set up SIGNS warning people there is an uncovered manhole and alerting them to the danger.

This is known under tort law as the duty to warn. A person or company whose behavior inherently imposes risk of injury on other people must warn them of the danger.

The duty to warn is part of the duty of care. Being careful means warning others of a danger you created and they don’t know about. 

When a person or company does not take enough care, and someone else is injured as a result, the careless person or company may be guilty of negligence.

How far does someone have to go to warn other people?

Under the law, defendants don’t usually have a duty to warn about obvious dangers, like “do not drink gasoline” or “do not stick your head in a gas oven.” 

And yet, there are plenty of signs out there that make people stop and say “who would do that?” Usually, a lawyer told them to put up that warning… because someone did do that.

The safest way to deal with dangers and the duty of care is simply to warn.

Inadequate Warning

Now, we get to the heart of the matter. To pass legal muster, a warning must meet or exceed two primary standards:

  • Visible: This point often comes up in dangerous drug claims. If Drug X has a high risk of a serious side-effect, the manufacturer cannot bury the warning on a long list of possible side-effects. Publication is a similar issue. If the manufacturer includes a warning on a product label after it hits the shelves, people have already taken the drug, and they don’t see the warning.
  • Informative: This point often affects Medspeak warnings. The warning must be in a language victims understand. Frequently, that language is something other than English. Usually, the warning must also include transmission details. For example, does ingesting the product cause the danger, or does touching it cause the hazard?

What if someone misuses the product and creates a danger?

Screwdrivers are very useful to loosen and tighten screws, but sometimes people use they for all kinds of other things – prying open containers, scraping paint.

Sometimes, when a person misuses the product – uses it in a way it wasn’t supposed to be used – then the manufacturer will not be held responsible for not warning of the danger. 

But that is not a defense if a reasonable person would expect the product to be misused. Manufacturers and even retailers are supposed to think about how a product might be misused and to warn consumers. This is known as foreseeable harm – it refers to a danger that someone would expect could happen.  

Example: Vending machine injuries are a good example. We all know that we shouldn’t stick our arms inside vending machines. However, people do this when they are desperate for a Twix bar. 

The vending machine maker should expect some people might try to stick their arms in the machine. In order to fulfill the duty of care, the vending machine maker can add a warning sign that warns people not to stick their arms in the machine because it could get hurt.

As an aside, unforeseeable vending machine misuse is something like this.

Failure to Warn and Strict Liability Law

What is strict liability?

Failure to warn is a strict liability tort. 

Manufacturers, wholesalers, retailers, and other companies that fail to warn consumers about a known risk are automatically liable for damages. 

It means the court assumes that if a consumer uses a product in the ordinary, expected way – and something happens injuring them – that something went wrong with the product in the manufacturing or channel of commerce that ends up in the hands of the consumer. 

They either knew about the danger, or should’ve known about the danger by inspecting the product before selling it. That’s why quality control is so important in the manufacturing process.

Strict liability seem like a bit of a harsh rule, but there are some reasons for it: 

  • Dangerous products affect so many people at once that a simple negligence standard isn’t enough to protect people.
  • Strict liability law also recognizes that the company making the product is in the best position to know if the product is dangerous since they have access to it, and see it in an unpackaged form.
  • Manufacturers also can most easily take out insurance if the product is risky since they are selling it in volume.
  • Without strict liability, many people who did nothing wrong but were injured by a defective product would have no way to show the product was dangerous, and would be left injured with no compensation.

There is no perfect solution to the problem, but strict liability was seen as the best compromise. 

Every state is a bit different, but strict liability has been pretty standard law in the U.S. since the late 70s with the publication of the Second Restatement of Torts. That is a list of legal rules and ideas that is written by judges, law professors and legal experts to help explain the law.

Causation

Victim/plaintiffs must also prove that the failure to warn caused their illness.

Even if a person is injured and no warning was given, in order to win a lawsuit, the person injured must show that if the defendant had warned people, then no one would have been hurt. 

Initially, victim/plaintiffs must prove that they would have followed the warning if the defendant adequately published the danger, as outlined above.

Additionally, an expert witness usually must confirm the link between use of the product and the victim’s illness.

Damages in a failure to warn case normally include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. 

Additional punitive damages are available as well, if there is clear and convincing evidence that the defendant intentionally disregarded a known risk.

Example: If a person was exposed to asbestos and developed an asbestos-related illness, in many lawsuits they would have to have a medical expert testify that the asbestos caused the illness. Depending on the facts of the case, and which state the lawsuit is filed in, the court will not always assume that asbestos caused the illness. 

However, in many cases an injured person can receive compensation without having to show causation – because it is so well known that asbestos causes breathing illnesses and cancer, the law will assume that if a person was exposed to asbestos and has an asbestos injury, that the asbestos caused it. 

The legal term for this is presumption, because the court presumes (assumes) that it happened, even without seeing evidence.

Damages

Damages are injuries to the plaintiff. They can include financial harm like medical bills or lost wages, they can include bodily harm, and they can include losing a parent or spouse and the emotional and economic support they provided.

Damages in a failure to warn case normally include compensation for economic losses, such as medical bills, and noneconomic losses, such as bodily harm, inability to work, and the ongoing pain and suffering. 

Additional punitive damages are available as well, if there is clear and convincing evidence that the defendant intentionally disregarded a known risk.

Failure to Warn and dangerous products like asbestos

A failure to warn lawsuit claims that a company’s failure to warn consumers about a known risk. 

So a big part of these lawsuits is answering two questions:

  • What did the company know about the risk?
  • When did they know it?

The asbestos industry knew from the 1900s that asbestos was unhealthy, and by the 1950s they knew it causes cancer. But they didn’t warn anyone.

As early as 1899, scientists sounded the alarm about the dangers of asbestos. 

These warnings escalated over the years, leading to asbestos bans in over sixty countries, not including the United States.

In addition, asbestos manufacturers ignored their own company doctors’ warning about the health problems of asbestos.

Asbestos research was covered up by asbestos companies.

Even worse, the asbestos companies hired scientists to research the health effects of asbestos, and when the research showed it asbestos causes breathing illnesses and cancer, the companies deleted that information before publishing the study, or something they just buried the study completely. 

So they knew. 

And they knew long before they issued any kind of warning. In fact, the asbestos industry resisted efforts to regulate asbestos, and only admitted the truth when people started suing.

A failure to warn claim is an option for many asbestos injury victims. 

These injuries include mesothelioma, a rare form of heart-lung cancer that’s normally fatal within twelve months, and asbestosis, an equally-rare lung disease that’s often fatal as well.

Like other tort claims, failure to warn claims have several elements. Compensation is available if the victim/plaintiffs proves each element of the claim by a preponderance of the evidence (more likely than not).

Asbestos was a known danger when the asbestos industry sold it.

In ye olden days, this element was often difficult to prove. Today, thanks to the internet, everyone knows everything, or at least they could potentially know everything. 

According to the standard of proof in these claims, victim/plaintiffs don’t have to prove the defendant knew about an elevated risk. 

They must only prove that, more likely than not, the defendant knew about the elevated risk.

There’s also legal presumption that the defendant knew about risks involving a design flaw, a breakdown in the manufacturing process, or foreseeable product misuse.

Example: Asbestos failure to warn claims usually involve design flaws. As mentioned, the health hazards of asbestos were widely known. Willful blindness is not a defense. Defendants who bury their heads in the sand are still responsible for damages.

Conclusion / Take Away 

People take all kinds of risks – driving, flying, skydiving.

But they do it knowingly, informed about the risk and choosing to take it because it offers them some advantage.

Many people injured by asbestos were industrial workers, with dangerous jobs. These people faced all kinds of dangers – chemicals like chlorine, fires, falling from heights. They were not easily frightened, and are some of the bravest and toughest people anywhere in the world.

But none of them were warned about all the asbestos they were breathing in. In fact, many were told not to worry about it, that it was perfectly safe, and there was no need for protective gear like respirators. 

Even after OSHA passed laws requiring protection, many were not given the equipment.

But here’s the thing – all that time, the asbestos industry knew it was dangerous. They had studies showing that it caused cancer, and they buried the studies instead of publishing them. 

They were told by company doctors to warn the employees of the danger, and they made the decision not to, for business reasons. This isn’t just me saying it, it’s in the documents.

And that’s why so many courts have held that asbestos companies did not meet their duty of care by failing to warn employees and consumers of the hazards involved in asbestos products and materials.

AsbestosClaims.Law

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