Friday, October 23, 2015

You Have a Duty to Warn of Potential Dangers

By Beau Blackwell

           When an individual is an invited guest on someone’s property, the property owner has a duty to warn the guest if the property owner has knowledge of a dangerous condition and fails to give the guest a timely warning.[1]  A property owner is not liable when they give sufficient warning, where the guest is already adequately mindful of the hazard, or where there is no unsafe condition.[2]

If an owner knows that there is an “obvious” danger that is consistently causing accidents, the courts might find that since the owner should have foreseen further accidents, he should be liable for those subsequent accidents.[3]

In T.W. Regal Trace, the proprietors of an apartment complex had a duty to warn lessees of an alleged sexual assault committed by a cotenant of a tenant child.[4] The Court held that if the proprietors knew of the sexual assault, this knowledge establishes that a reasonable apartment complex should know that its lessees would be exposed to a hazard if not warned.[5] However, the court held that even though the landlord does not have a duty to conduct an investigation into crime issues in the area, it did have duty to warn tenants of unlawful conduct of which it was aware.[6]

In Lemen v. Florida Power & Light Co., an electric company warned an independent contractor of the potential dangers of the potential dangers associated with the area where the contractor would be working.  The court ruled that the company was not negligent for the contractor’s subsequent injury.[7]    

Products Liability

The duty to warn is also applicable in products liability cases.  A company has a duty to warn the customer of foreseeable risks associated with the use of products which are known or reasonably should be known to the company.[8] The company breaches their duty by failing to give warning or by providing a warning that is insufficient to adequately warn of the danger.[9]

Among the elements to be measured by the jury in determining whether a manufacturer has a duty to warn end-users directly are: (1) the gravity of the risks posed by the product; (2) the likelihood that the intermediary will convey the information to the ultimate user; and (3) the feasibility and effectiveness of giving a warning directly to the user.[10]

The duty to warn may exist even when there is no actual defect in the product itself.[11]  A product could be considered defective even though it was perfectly made and if it was provided to a consumer without sufficient warning regarding the dangers associated with use of the product and the method in which the product should be safely used.[12] Moreover, products which are not defective when they ship could still be the subject of a claim for failure to warn if the manufacturer can foresee defects emerging in the product after ordinary use by the consumer.[13]

For example, a manufacturer of a wood chipper did not have a duty to warn consumers that the wood chipper should not be used without safety cover, because the danger of using the product without cover was obvious. [14]

Beau Blackwell lives in St. Petersburg, Florida and is an honor roll law student at Stetson Law.  Mr. Blackwell is also a law clerk at a civil litigation firm. 

[1] 41 Fla. Jur 2d Premises Liability § 37
[2] Id.
[3] Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1312 (Fla. 1986).
[4] T.W. v. Regal Trace, Ltd., 908 So. 2d 499 (Fla. 4th DCA 2005).
[5] Id.
[6] Id. at 506
[7] Lemen v. Florida Power & Light Co., 452 So. 2d 1107 (Fla. 5th DCA 1984).
[8] 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 13:13 (2014-2015 ed.)
[9] Id. 
[10] Restatement (Third) of Torts: Products Liability § 2. Union Carbide Corp. v. Aubin, 97 So. 3d 886 (Fla. 3d DCA 2012).
[11] See Moorman v. American Safety Equipment, 594 So. 2d 795, Prod. Liab. Rep. (CCH) P 13111 (Fla. 4th DCA 1992)
[12] See Cohen v. General Motors Corp., Cadillac Div., 427 So. 2d 389 (Fla. 4th DCA 1983)
[13] Builders Shoring and Scaffolding Equipment Co., Inc. v. Schmidt, 411 So. 2d 1004 (Fla. 5th DCA 1982).
[14] Hernandez v. Altec Environmental Products, LLC, 903 F. Supp. 2d 1350 (S.D. Fla. 2012) (applying Florida law).

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