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COMMENT

CAUTION: THIS SUPERMAN SUIT WILL NOT


ENABLE YOU TO FLY—Are Consumer
Product Warning Labels Out of Control?
J. Scott Dutcher†

I. INTRODUCTION
Consumer warnings are everywhere. Labels on products such as
toothbrushes, shampoo, bicycles, and plastic bags merely warn of the
obvious. What kind of person is smart enough to read the label on the
package of a superman suit, yet foolish enough to attempt flight while
wearing it?1 Perhaps we should include the following warning on all U.S.
coins: “CAUTION: This coin may cause severe harm, suffocation, or even
death if swallowed.” After all, as writer Elbert Hubbard once said: “Genius
may have its limitations, but stupidity is not thus handicapped.”2
This Comment examines failure-to-warn defects in products liability
cases and numerous recent suits which have forced manufacturers to create
comprehensive and sometimes wacky warning labels to protect themselves
against ignorant and sometimes foolish consumers. The two main sources of
harm that require adequate warnings, which I will discuss in this Comment,
are: (1) unintended but foreseeable use of the product and (2) inherent
dangers in the use of high-risk products.3 I will not discuss unavoidably
unsafe products4 or the possible allergic reactions to products. However, a

† Managing Editor, Arizona State Law Journal. J.D. Candidate, Arizona State University
College of Law, 2006; B.S., Brigham Young University, 2002. I would especially like to thank
Professors Jennifer Barnes, Michael Berch, and Betsy Grey for their excellent direction and
feedback and my wife, Kyla, for her patience and support.
1. I would like to thank Jerry Seinfeld for suggesting this line of reasoning. See JERRY
SEINFELD LIVE ON BROADWAY: “I’M TELLING YOU FOR THE LAST TIME” (HBO Home Video
1998).
2. B. C. Forbes, Thoughts on the Business Life, FORBES, Nov. 27, 1989, at 308.
3. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmts. i, m (1998)
[hereinafter RESTATEMENT (THIRD)].
4. See RESTATEMENT (SECOND) OF TORTS § 402A cmt. k (1965) [hereinafter
RESTATEMENT (SECOND)] (stating that an unavoidably unsafe product is “incapable of being
made safe for [its] intended and ordinary use”); see also Stief v. J. A. Sexauer Mfg. Co., 380
F.2d 453, 460 (2d Cir. 1967).
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manufacturer’s failure to warn in these circumstances can constitute major
harm, and warning labels play a critical role in these areas. Part II presents
the current state of the law regarding failure-to-warn defects. Part III
reviews four cases within the past thirteen years where the plaintiffs alleged
a failure-to-warn defect.5 Each case’s discussion will focus on the court’s
analysis, reasoning, and authoritative support. Part IV considers the impact
of the courts’ rulings on the same four cases, their accuracy, and remaining
open questions. Finally, Part V summarizes the issues raised in this
Comment and argues that product warning labels should always be
extensive enough to cover the most important dangers but that
manufacturers need to be careful not to inundate consumers and users with
excessive warnings, causing the more applicable and useful warnings to
become harder to find and understand.

II. FAILURE-TO-WARN DEFECTS: CURRENT STATE OF THE LAW


Notwithstanding a product’s perfect design and proper manufacture, the
manufacturer or seller may still be subject to liability if it fails to provide an
adequate warning of the dangers associated with that product’s use or
instruction on how to avoid related risks of injury.6 Conversely, although an
adequate product warning will prevent holding a manufacturer strictly liable

A tack, a hammer, a pane of glass, a chair, a rug, a rubber band, and myriads
of other objects are truly ‘inherently dangerous,’ because they might slip.
They cause accidents and injury even more often, we expect, than do rubber
exercisers. But [t]he doctrines fashioned by the law for inherently dangerous
objects do not encompass these things. A hammer is not of defective design
because it may hurt the user if it slips. A manufacturer cannot manufacture a
knife that will not cut or a hammer that will not mash a thumb or a stove that
will not burn a finger. The law does not require him to warn of such common
dangers.
Stief, 380 F.2d at 460; see also Palmer v. Hobart Corp., 849 S.W.2d 135, 140 (Mo. Ct. App.
1993) (discussing a meat grinder).
5. In order of appearance, these cases are: Emery v. Federated Foods, Inc., 863 P.2d 426
(Mont. 1993); Hubbs v. Joseph Enters., 604 N.Y.S.2d 292 (N.Y. App. Div. 1993); Metzgar v.
Playskool Inc., 30 F.3d 459 (3d Cir. 1994); and Dunne v. Wal-Mart Stores, Inc., 679 So. 2d
1034 (La. Ct. App. 1996).
6. See Meyerhoff v. Michelin Tire Corp., 70 F.3d 1175, 1181 (10th Cir. 1995) (stating
that a product may be defective if it is not accompanied by sufficient warnings); Cheshire Med.
Ctr. v. W.R. Grace & Co., 49 F.3d 26, 32 (1st Cir. 1995) (“[A]s a matter of settled law, judicial
opinions and commentators alike refer to proof of manufacturing defect, design defect, and
warning defect as three different ways of proving product defect, not just as factors bearing
upon one way of proving product defect.”); Sharp v. Wyatt, Inc., 627 A.2d 1347, 1353 (Conn.
App. Ct. 1993) (stating that a failure to warn, in and of itself, is a product defect);
RESTATEMENT (THIRD), supra note 3, § 2(a) (stating that a manufacturer/seller of a product may
be liable “even though all possible care was exercised in the preparation . . . of the product”).
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based on a failure-to-warn claim, manufacturers cannot avoid liability for
design or manufacturing defects simply by providing warnings.7

A. Background
Manufacturers must exercise reasonable care in the manufacture,
marketing, and labeling of their products.8 Otherwise, they may be subject
to liability if their lack of care causes damage to users and consumers.
Additionally, nonmanufacturing product sellers may also face liability in
the event that predecessors up the distribution chain did not provide
adequate warnings.9
Even though products liability law is currently based mostly on strict
liability and implied warranty doctrines in lieu of standard negligence,10
some now argue that “any distinction between strict-liability and negligence
principles is [merely] illusory” for failure-to-warn cases.11

7. E.g., Glover v. BIC Corp., 987 F.2d 1410, 1415 (9th Cir. 1993). Simply by providing
adequate warnings regarding product risks, manufacturers should not be relieved of their duty to
design products in such a way as to eliminate the risks that the warnings clearly point out to
consumers. See generally Howard Latin, “Good” Warnings, Bad Products, and Cognitive
Limitations, 41 UCLA L. REV. 1193 (1994).
A fair criticism of Comment j [of the Restatement (Second) of Torts § 402A]
is that it can be construed so broadly as to permit a malicious product seller
to get away with serious misconduct. For example, one might argue that a
manufacturer of fire extinguishers could avoid liability by displaying this
warning in bold letters: “Do Not Use In A Room That Is Warmer Than 80°
Fahrenheit—The Product May Explode And Seriously Harm You!” Such a
warning would have no value because the normal and intended use of the
product might endanger the user. This hypothetical reflects a specific
situation in which it would be inappropriate to allow a clear and adequate
warning to be used as a liability shield; a fire extinguisher designed for safe
use in extremely hot temperatures can be manufactured at a reasonable cost.
Victor E. Schwartz, See No Evil, Hear No Evil: When Clear and Adequate Warnings Do Not
Prevent the Imposition of Product Liability, 68 U. CIN. L. REV. 47, 53 (1999) (footnote omitted).
8. See RESTATEMENT (THIRD), supra note 3, § 2(a) (stating that a manufacturer/seller of a
product may be liable “even though all possible care was exercised in the preparation and
marketing of the product”).
9. See id. § 2 cmt o (discussing the liability of nonmanufacturing product sellers).
10. David Polin, Failure To Warn As Proximate Cause of Injury, in 8 AM. JUR. PROOF OF
FACTS 3d 547, § 1 (2005); see also Greenman v. Yuba Power Prods., Inc., 377 P.2d 897, 900
(Cal. 1963) (discussing manufacturer strict liability).
11. Polin, supra note 10, § 2; see also William E. Westerbeke, The Sources of Controversy
in the New Restatement of Products Liability: Strict Liability Versus Products Liability, 8 KAN.
J.L. & PUB. POL’Y 1, 8 (1998) (“By adopting a negligence standard for design defects and
warning defects, the new Restatement shifts away from a rigid ‘strict liability’ view of section
402A [of the Restatement (Second)] and more toward the ‘products liability’ view.”).
636 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
No matter which theory is used in a failure-to-warn defect case,
proximate cause is still a critical component that must be proven in all
products liability suits, including failure-to-warn defect cases.12 Plaintiffs
must demonstrate that (1) the defendant manufacturer, supplier, or seller
knew or should have known of the dangers related to the product’s intended
use; (2) the product’s user/consumer was reasonably unaware of these
dangers; (3) the defendant manufacturer, supplier, or seller failed to exercise
reasonable care to notify the user/consumer of the product’s unsafe
condition or the facts which make the product prone to be dangerous; and
(4) the risk and degree of harm was large enough to justify that a warning
should have been provided.13 Moreover, to win a failure-to-warn defect
case, plaintiffs must also convince the fact-finder that heeding the warning
would have prevented the injury.14 Accordingly, failure-to-warn defect
cases may be predicated on “(1) the absence of a warning, (2) the
inadequacy of the warning given, or (3) the absence or inadequacy of
instructions in the safe use of the product.”15

12. Polin, supra note 10, § 1; see also Wash. State Physicians Ins. Exch. & Ass’n v.
Fisons Corp., 858 P.2d 1054, 1064 (Wash. 1993) (“A product manufacturer is subject to liability
to a claimant if the claimant’s harm is proximately caused by the negligence of the manufacturer
in that the product was not reasonably safe as designed or not reasonably safe because adequate
warnings or instructions were not provided.” (quoting WASH. REV. CODE § 7.72.030(1)));
Greenman, 377 P.2d at 900.
13. See RESTATEMENT (THIRD), supra note 3, § 10; see also RESTATEMENT (SECOND),
supra note 4, § 388.
14. See W. Page Keeton, Products Liability—Inadequacy of Information, 48 TEX. L. REV.
398, 413–15 (1970); see also Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 15–16 (1st
Cir. 2001) (holding that the sweatshirt manufacturer did not have to provide a more
particularized warning of the flammability characteristics of a sweatshirt, which caught fire
when a twelve-year-old girl reached over a kitchen stove burner, absent a showing that such a
more particularized warning would have prevented the accident or even been heeded by the
girl). Many common law courts have dropped the requirement that had there been a proper
warning for the product, the user would have heeded it, because courts assume that all plaintiffs
would always testify that they would have heeded the warning. See, e.g., Burton v. R.J.
Reynolds Tobacco Co., 208 F. Supp. 2d 1187, 1196 (D. Kan. 2002) (“[T]he Tenth Circuit
rejected the argument that, under Kansas law, a plaintiff must suggest a proposed warning and
that the plaintiff must testify that he or she would have heeded the warning. The Tenth Circuit
held that ‘Kansas does not require such self-serving testimony from plaintiffs . . . .’” (citing
Richter v. Limax Int’l, Inc., 45 F.3d 1464, 1472 (10th Cir. 1995))); Lee v. Martin, 45 S.W.3d
860, 865 (Ark. Ct. App. 2001) (“[I]f a plaintiff meets his initial burden of proving that a
warning is inadequate, a presumption arises that he would have read and heeded an adequate
warning . . . .” (citing Bushong v. Garman Co., 843 S.W.2d 807 (Ark. 1992))).
15. ROBERT B. YULES, PRODUCTS LIABILITY PRACTICE GUIDE § 7.03 (2005).
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Warnings may be inadequate if the content of the warning is insufficient,
inaccurate, or misleading in nature.16 In addition, the design, appearance, or
location of the warning may also be grounds to support its inadequacy.17

B. The Duty to Warn


Manufacturers and sellers must provide product consumers and users
with an adequate warning of the dangers associated with that product’s use
or instruction on how to avoid related risks of injury.18 These instructions
are critical in informing people how to safely use and consume products.19
Additionally, business entities are usually in a much better position to
protect against losses than an individual consumer or product user.20
Manufacturers are not, however, obligated to conceive of every possible use
or misuse and warn every consumer accordingly.21 “The law does not
require that an article be accident-proof or incapable of doing harm. It
would be totally unreasonable to require that a manufacturer warn or protect
against every injury which may ensue from mishap in the use of his
product.”22
The nature and extent of a manufacturer’s and seller’s duty to warn and
the adequacy of the warning depend on various factors, including the
product’s intended and foreseeable uses and the complexity of such uses,
the user’s age and experience, the user’s normal expectations as to how the
product will perform, the user’s knowledge of the possible danger, the
severity and likelihood of an actual injury, and the feasibility and positive
effect of including the warning.23

16. Wilson Foods Corp. v. Turner, 460 S.E.2d 532, 534 (Ga. Ct. App. 1995). When a user
complains of the insufficiency, inaccuracy, or misleading nature of a product warning, the user
must have actually read the warning before the accident to continue with a failure-to-warn
product liability claim. Id.; see also supra text accompanying note 14.
17. Wilson Foods Corp., 460 S.E.2d at 534; see also infra text accompanying notes 175–
78.
18. See sources cited supra note 6; see also RESTATEMENT (THIRD), supra note 3, § 2 cmt.
i (“[P]roduct sellers must provide reasonable instructions and warnings about risks of injury.”).
19. RESTATEMENT (THIRD), supra note 3, § 2 cmt. i.
20. Id. § 2 cmt. a.
21. See infra Part II.C.
22. Stief v. J. A. Sexauer Mfg. Co., 380 F.2d 453, 459–60 (2d Cir. 1967) (quoting
Jamieson v. Woodward & Lothrop, 247 F.2d 23, 25–26 (D.C. Cir. 1957).
23. Schwoerer v. Union Oil Co., 17 Cal. Rptr. 2d 227, 231 (Cal. Ct. App. 1993); YULES,
supra note 15, § 7.03(1)(b); RESTATEMENT (THIRD), supra note 3, § 2 cmt. j (“[C]ourts must
focus on various factors, such as content and comprehensibility, intensity of expression, and the
characteristics of expected user groups.”); see also Immormino v. J & M Powers, Inc., 91 Ohio
Misc. 2d 198, 202–03 (Ct. Com. Pl. Cuyahoga County 1998) (holding that a fast food
restaurant’s warning on a hot cup of tea, stating “CAUTION—CONTENTS ARE HOT,” which
638 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
Additionally, manufacturers are held to the standard of an expert when
determining whether they should have been aware of certain dangers
associated with their products.24 To hold a manufacturer liable in a failure-
to-warn case, the product “must be dangerous to an extent beyond that
which would be expected by the ordinary consumer.”25 Thus, a product user
cannot claim that the lack or inadequacy of a warning in a failure-to-warn
case was the proximate cause of an injury when the user was already aware
of the danger.26

C. When the Duty to Warn does not Arise


Manufacturers and sellers are not absolutely liable for all injuries which
occur to users or consumers of their products, so there is no blanket duty to
warn users of all possible dangers (both foreseeable and unforeseeable)
associated with using the manufacturer’s products. For instance,
manufacturers and retailers do not have a duty to warn users regarding
specific dangers when such dangers are both unlikely and not serious.27
Moreover, manufacturers are not obligated to anticipate fantastic misuses of
their products,28 such as in Thibault v. Sears, Roebuck & Co.29 There, the
Supreme Court of New Hampshire affirmed judgment for Sears after
finding that the plaintiff was injured while using his riding lawnmower
improperly and against Sears’ explicit instructions.30 The plaintiff decided
to mow straight up and down a hill on his lawn instead of the safer route
across.31 He lost his balance and injured himself as he grabbed onto the

was printed in two separate locations on a cup, was adequate as matter of law when coupled
with consumer expectations that the tea may be too hot for one’s tongue and burn other body
parts and therefore, was not defective due to inadequate warning).
24. YULES, supra note 15, § 7.03(1)(b).
25. RESTATEMENT (THIRD), supra note 3, § 2 reporters’ note C (quoting Aller v. Rodgers
Mach. Mfg. Co., 268 N.W.2d 830, 834–35 (Iowa 1978)); see also RESTATEMENT (SECOND),
supra note 4, § 402A cmt. i. (stating that the product “must be dangerous to an extent beyond
that which would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics”).
26. See, e.g., Gower v. Savage Arms, Inc., 166 F. Supp. 2d 240, 249–50 (E.D. Pa. 2001)
(discussing the failure of the plaintiff’s claim because he could not show that the lack of
warnings/instructions regarding the dangerousness of the gun caused his injuries when he had
extensive training and use of firearms).
27. YULES, supra note 15, § 7.03(1)(e); see, e.g., Salinas v. Gen. Motors Corp., 857
S.W.2d 944, 950 (Tex. App. 1993) (holding that a car manufacturer owed no duty to warn either
the elderly driver or the dealer “about the dangers posed by elderly, impaired drivers”).
28. Id.
29. 395 A.2d 843, 845 (N.H. 1978).
30. Id. at 845.
31. Id.
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mower while falling.32 The court emphasized that “[m]anufacturers cannot
foresee and warn of all absurd and dangerous uses of their product.”33
Further, manufacturers do not have a duty to warn potential consumers
of possible dangers that are obvious or ones which were actually known by
the injured consumer.34 “The goal of preventing future harm is not advanced
. . . by imposing a duty to warn a person who is oblivious to an obvious
danger.”35 For example, in Pineda v. Ennabe, a child and mother sued their
landlord after the child fell out of a second story window in their
apartment.36 The mother had placed a bed directly beneath the window and
later left the child unsupervised.37 While bouncing on the bed, the five-year-
old child “knocked the window screen out or aside and fell [thirty] feet to
the ground.”38 The mother maintained that the landlord should have
included a warning label near the window, advising that the window’s
screen would not prevent a person from falling out.39 However, the court
reasoned that “[t]he policy of preventing future harm would not likely be
significantly advanced by imposing a duty here. A parent oblivious to the
obvious danger posed to an unsupervised child near an open upper story
window would likely be equally oblivious to a warning.”40 Accordingly, the
court held that the landlord “owed no duty of care to prevent the kind of
accident which occurred here.”41
Whether a particular danger is obvious is determined by an objective
test. The court will look to what an ordinary consumer who purchases or

32. Id.
33. Id. at 847.
34. See Maneely v. Gen. Motors Corp., 108 F.3d 1176, 1180 (9th Cir. 1997) (stating that
riding unrestrained in the bed of a pickup truck was an open and obvious danger); Hagans v.
Oliver Mach. Co., 576 F.2d 97, 102 (5th Cir. 1978) (stating that the danger from a table saw’s
unprotected circular blade was obvious); Salinas v. Gen. Motors Corp., 857 S.W.2d 944, 950
(Tex. App. 1993) (stating that the “hazards posed by selling an automobile to incompetent
drivers of any age are open, obvious, and generally known and recognized”); Holmes v. J.C.
Penney Co., 183 Cal. Rptr. 777, 779 (Cal. Ct. App. 1982) (stating that firing a pellet gun is an
obvious danger).
35. Hildy Bowbeer & David S. Killoran, Liriano v. Hobart Corp.: Obvious Dangers, the
Duty to Warn of Safer Alternatives, and the Heeding Presumption, 65 BROOK. L. REV. 717, 731
(1999); see also RESTATEMENT (THIRD), supra note 3, § 2 cmt. j (“Warning of an obvious or
generally known risk in most instances will not provide an effective additional measure of
safety.”).
36. 72 Cal. Rptr. 2d 206, 207 (Cal. Ct. App. 1998).
37. Id.
38. Id.
39. Id.
40. Id. at 208–09.
41. Id. at 208.
640 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
uses the product knew or should have known.42 If for some reason, the
danger was not obvious, but the product user still knew of the particular
danger, then the product user cannot successfully claim that the
manufacturer should have warned her of that danger, because an additional
warning would not have put her in a better position to avoid the danger or
dangerous condition.43 Furthermore, if a reasonable consumer who
purchases or uses a product would know of a particular danger or a
dangerous condition associated with that product, but a particular plaintiff
did not actually know of the danger, then that plaintiff’s claim against the
manufacturer for failing to warn will also fail.44

III. FAILURE-TO-WARN DEFECT CASES


Within the past two decades, the number of cases in which plaintiffs
have alleged a failure-to-warn defect has increased exponentially and in
contexts that some commentators have labeled absurd.45 No one single
mixture of these suits could do justice in fully portraying the current state of
these claims. Nevertheless, this section will focus on four cases, which are
perhaps more interesting and entertaining than most.

42. See, e.g., Maas v. Dreher, 460 P.2d 191, 193 (Ariz. Ct. App. 1969) (stating that the
plaintiff “testified that the condition which caused her injury was not in any way hidden or
concealed from her—that she knew what she was hitting when she purposely hit the corner of
the lid of the waste container. Under the circumstances, such a condition cannot be held
unreasonably dangerous.”).
43. See id. (stating that “[i]f the condition causing injury is open, obvious and known to
the plaintiff, or, stated another way, if the plaintiff is aware of such condition, there can be no
surprise element of danger”).
44. Id. at 194.
45. See John C. P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513, 582–83
(2003) (“Even in the heartland of modern accident law—products liability—one already sees a
relative increase in claims grounded on failure to warn and inform . . . .”); Michael S. Jacobs,
Toward a Process-Based Approach to Failure-to-Warn Law, 71 N.C. L. REV. 121, 136 (1992)
(labeling “a number of cases involving ‘patently obvious dangers’” as “absurd” (quoting James
A. Henderson, Jr. & Aaron D. Therski, Doctrinal Collapse in Products Liability: The Empty
Shell of Failure to Warn, 65 N.Y.U. L. Rev. 265 (1990))); id. at 177 (noting a “tremendous
growth in the number of failure-to-warn cases”); Douglas R. Richmond, Human Factors
Experts in Personal Injury Litigation, 46 ARK. L. REV. 333, 338 (1993) (stating that there has
been a recent “explosive increase in the number of . . . failure to warn cases”); see also Richard
C. Ausness, Will More Aggressive Marketing Practices Lead to Greater Tort Liability for
Prescription Drug Manufacturers?, 37 WAKE FOREST L. REV. 97, 137 (2002) (asserting that
litigation for failure-to-warn defects will increase).
38:0633] CONSUMER PRODUCT WARNING LABELS 641
A. Emery v. Federated Foods, Inc.46
On November 3, 1987, Laura Emery (“Emery”) stopped by a grocery
store after work.47 Among other items, Emery selected a bag of regular size
marshmallows for purchase after claiming to have scanned the bag’s label.48
The label contained no warning concerning the possible aspiration danger to
children from ingesting marshmallows.49 After arriving home, Emery placed
the bag of marshmallows on a top kitchen shelf so that the bag would be out
of her children’s reach.50
The next morning, Emery gave her two boys permission to eat
marshmallows before breakfast.51 While she was still in bed, Zach (age
seven) retrieved the marshmallows for himself and also gave them to his
younger brother Chad (age two-and-a-half).52 Within a few seconds, Chad
began to choke on the marshmallows.53 A family friend executed the
“Heimlich Maneuver” on Chad, which forced out a few marshmallow
pieces, but Chad continued to choke.54 Finally, doctors at the local hospital
were able to suction “a small liquefied piece of marshmallow from Chad’s
airway.”55 As a result of this incident, however, Chad suffered severe brain
injuries.56
Emery filed a complaint against the manufacturer, Federated Foods,
alleging “that the marshmallows were defective and dangerous to the
consumer and that, in spite of the significant danger of aspiration by small
children, the product contained no warning of such danger.”57 Emery
claimed in an affidavit that (1) “if [she] had been warned of the risk of small
children choking on marshmallows, [she] would not have purchased them at
all,” (2) she “usually read[s] labels on food products prior to buying them,”
and (3) she always takes “note of warnings on labels about risks to
children.”58 The Montana trial court granted summary judgment in favor of
Federated Foods on the failure-to-warn claim,59 and Emery appealed.

46. 863 P.2d 426 (Mont. 1993).


47. Id. at 428.
48. Id.
49. Id. at 428–29.
50. Id. at 428.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id.
56. Id.
57. Id. at 428–29.
58. Id. at 432.
59. Id. at 429.
642 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
The Supreme Court of Montana reversed the decision. In writing for the
majority, Justice Gray first stated that a failure-to-warn products liability
claim requires proof of three elements: (1) the product’s condition was
defective because it was “‘unreasonably’ dangerous to the user or
consumer,” (2) the defect actually caused the accident and subsequent
injuries alleged by the consumer, and (3) the product’s “defect is traceable
to the defendant.”60 Also, according to the court, products may be defective
if consumers and foreseeable end users are misinformed regarding a
product’s usage risks or how to minimize the harm caused from such
dangers.61
The majority gave great weight to the affidavits of two different doctors
who presented opinions regarding marshmallows’ hazardous properties.62
Notwithstanding this evidence, the trial court had found that marshmallows
pose no more a choking threat than most other foods.63 In particular, the
majority found a specific section of Dr. Loube’s affidavit to be highly
persuasive:
Food items are often particularly dangerous in that they change
their characteristics and consistency when they are soaked with the
liquid secretions that are present in the breathing tubes of the
lungs. These secretions usually cause some swelling of the food so
that it further obstructs the breathing passage.
....
A marshmallow is a particularly hazardous confection as a risk of
aspiration in children under the age of three. It is sweet and,
therefore, has a great deal of appeal to small children. It appears
soft and innocuous to parents and does not present the same
apparent risk that might be perceived by a parent when
considering a piece of hard candy or a jelly bean.
....
An aspirated piece of marshmallow can be very difficult to
dislodge. Because it continues to expand after entering the airway
it can efficiently obstruct a large breathing passage, perhaps even
the trachea (the main breathing tube). An aspirated marshmallow
fragment might not be reachable with a finger and could be
difficult to dislodge with a Heimlich maneuver.64

60. Id. at 431 (citing Riley v. America Honda Motor Co., 856 P.2d 196, 198 (Mont. 1993);
Brown v. N. Am. Mfg. Co., 576 P.2d 711, 716 (Mont. 1978)).
61. Emery, 863 P.2d at 431.
62. Id. at 431–32.
63. Id. at 432.
64. Id. at 431–32.
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Additionally, Dr. Dingus declared that, without a proper warning, “it is
foreseeable that a reasonable parent would not perceive that marshmallows
present a danger to small children.”65 For these reasons, the Supreme Court
of Montana held that the trial court had incorrectly determined facts
regarding the chemical properties of the marshmallows and the
foreseeability of children suffocating on them.66
The court further determined that the question of causation had not been
solved, and thus, summary judgment for the defendant was improper.67 The
supreme court found that the fact-finder had yet to determine whether the
accident was caused by the product’s inadequate warning or by the manner
and quantity of marshmallows eaten.68
In his dissent, Chief Justice Turnage recognized the tragedy of such an
unfortunate accident but argued that the marshmallows were not in a
defective state such that they were unreasonably dangerous.69 “If
marshmallows are unreasonably dangerous to eat without a warning, then so
would be nearly every conceivable food item that a two-and-one-half-year-
old child would try to eat; and I submit that children of that age will try to
eat anything and everything.”70 He further asserted that the risk of small
children choking on almost all food items is of common knowledge to all
adults, and as such, plaintiff’s failure-to-warn claim should fail because the
plaintiff mother was actually or should have been aware of this particular
danger.71
Finally, the chief justice exposed the undesirable public policy
consequences of the majority’s holding.72 He warned that the effect of the
majority’s opinion “may well be that warnings must be placed on nearly
every food item available to the public if the provider is to avoid litigation
for a claim of products liability,” which would be a daunting, if not
impossible, task for the providers of anything edible.73

65. Id. at 432.


66. Id. at 433.
67. Id. at 432.
68. Id.
69. Id. at 433–34 (Turnage, C.J., dissenting).
70. Id. at 434.
71. Id.
72. Id.
73. Id.
644 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
B. Hubbs v. Joseph Enterprises74
Plaintiff Edna Hubbs (“Hubbs”), an eighty-year-old woman who
suffered from both arthritis and osteoporosis, purchased “The Clapper,”
manufactured by defendant Joseph Enterprises.75 “The Clapper” is a gadget
designed to turn on/off any electrical appliance by clapping one’s hands.76
Hubbs claimed that she suffered injuries to both her hand and wrist when
she attempted to activate “The Clapper” by clapping her hands together.77
Inside the package of “The Clapper,” a package insert cautioned that
“[s]enior citizens or handicapped persons who find clapping difficult, may
prefer to use an inexpensive clicker (cricket), available at most novelty
retailers.”78 Notwithstanding this caution, Hubbs filed suit against Joseph
Enterprises, alleging in part that it failed to warn of “The Clapper’s”
dangerousness.79
Justice Mercure, writing for a unanimous court, pointed out three critical
flaws in the plaintiff’s case. First, the plaintiff never adjusted “The
Clapper’s” sensitivity control, which was notably illustrated in the material
accompanying the device.80 Second, the court considered the specific
caution that some senior citizens may find clapping to be difficult and
prefer a clicker instead to be a warning to the consumer.81 Third, the court
found that the plaintiff’s injury was not caused by any defect in “The
Clapper” or the failure to warn of a defect.82 Instead, the plaintiff’s injury
was exclusively caused by the “plaintiff’s deliberate act of attempting one
last ‘extra hard’ clap after repeated prior efforts had failed to activate the
device.”83
Accordingly, the court affirmed the lower court’s decision that the
plaintiff’s failure-to-warn product liability claim had no merit.

C. Dunne v. Wal-Mart Stores, Inc.84


Plaintiff Judy Dunne (“Dunne”) received an Aero Cycle exercise bike on
February 2, 1991, which was purchased from Wal-Mart as a gift from her

74. 604 N.Y.S.2d 292 (N.Y. App. Div. 1993).


75. Id. at 292.
76. Id.
77. Id.
78. Id. at 293.
79. Id. at 292.
80. Id. at 292–93.
81. Id. at 293.
82. Id.
83. Id.
84. 679 So. 2d 1034 (La. Ct. App. 1996).
38:0633] CONSUMER PRODUCT WARNING LABELS 645
children.85 The exercise bike was manufactured by Diversified Products
Corporation (“DP”).86 After receiving the bike, Dunne rode it initially for
just a moment.87 On August 16, 1991, Dunne used it for the second time.88
As Dunne mounted the exercise bike and pedaled for only three to four
revolutions, the bike collapsed.89 The bike’s rear leg tubing and/or the link
between the tubing and the bike’s support strut failed, triggering the bike’s
collapse.90 The collapse, in turn, caused Dunne, who weighed nearly 500
pounds at the time, to fall off the bike backwards.91
As Dunne fell off the bike, she hit her head on a metal file cabinet next
to the bike and was knocked unconscious.92 After regaining consciousness,
Dunne’s mouth was bleeding, and she also sustained injuries to her neck,
left shoulder, arm, leg, knee, and ankle.93 On the same day as the accident,
Dunne was diagnosed by a physician as having a cervical strain and a few
contusions.94 Later, she also complained of neck pain, dizziness, headaches,
numbness, sensitivity to light, and minor swelling and muscle spasms in her
right hand.95
Dunne filed suit against both the bike’s manufacturer, DP, and Wal-
Mart, the store where the product was purchased, claiming that the bike was
unreasonably dangerous because it did not provide any warning to obese
users.96 The trial court disagreed, stating on summary judgment that DP
could not have reasonably anticipated that someone weighing nearly 500
pounds would use its Aero Cycle exercise bike.97
DP manufactured its Aero Cycle exercise bike in accordance with the
American Society for Testing and Materials (“ASTM”) standards.98 As
such, the bike was designed to “withstand use by adults weighing up to 250
pounds, as this encompasses greater than 98.5 percent of the United States
adult population.”99 David Newton, the Consumer Affairs Manager for DP,
testified that because an Aero Cycle prototype was tested to loads as high as

85. Id. at 1036.


86. Id.
87. Id.
88. Id.
89. Id.
90. Id.
91. Id.
92. Id.
93. Id.
94. Id.
95. Id.
96. See id. at 1036.
97. Id.
98. Id. at 1037.
99. Id.
646 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
440 pounds for periods of five minutes without issue, the ASTM standards
did not require a warning for a maximum load capacity.100
The Court of Appeal of Louisiana reversed, however. Judge Whipple,
writing for the majority, declared that DP did not automatically escape
liability for its products just because it complied with the ASTM
standards.101 The court stated the trial court looked at the wrong questions in
its determination of no liability.102 “Instead of considering whether plaintiff
was engaged in a ‘reasonably anticipated use,’ the trial court considered
whether plaintiff was a ‘reasonably anticipated user.’”103
The majority found that the plaintiff could not have misused the exercise
bike for she used it in the manner intended by the manufacturer.104 The court
reasoned that after all, DP designed and marketed the Aero Cycle exercise
bike specifically for the obese.105 Further, the court continued that the “fact
that plaintiff was considerably overweight does not place her in a category
of persons for whom DP has no responsibility.”106 Thus, the court found that
plaintiff’s damages actually resulted from a clearly foreseeable use of the
exercise bike.107
Next, the court focused on whether the bike was unreasonably dangerous
because an adequate warning was not provided.108 Pursuant to LSA-R.S.
9:2800.54(B), “A manufacturer is not required to provide an adequate
warning about [its] product when: The user or handler of the product
already knows or reasonably should be expected to know of the
characteristic of the product that may cause damage and the danger of such
characteristic.”109 In spite of LSA-R.S. 9:2800.54(B), the court thought that
DP could have easily and reasonably included a short statement in the
owner’s manual describing the maximum weight limit for the bike.110
Because the plaintiff had previously used a similar bike from a different
manufacturer for several years without issue, she did not know that the Aero
Cycle exercise bike would not sustain her weight.111 Thus, the court found

100. Id.
101. Id.
102. Id.
103. Id.
104. Id.
105. Id.
106. Id.
107. Id.
108. Id. at 1038.
109. Id. (quoting LA. REV. STAT. ANN. § 9:2800.54 (B)).
110. Id.
111. Id.
38:0633] CONSUMER PRODUCT WARNING LABELS 647
that danger was not obvious or that the plaintiff knew or should have been
aware of this dangerous condition.112
Furthermore, the plaintiff testified in the trial that before using the
exercise bike, she read the owner’s manual, and had a weight-limit warning
been provided, she would have observed it.113 The court held that DP failed
to exercise reasonable care in its duty to warn potential consumers and users
of the maximum load weight capacity for its Aero Cycle exercise bike.114 In
reversing the trial court, the majority also awarded the plaintiff $10,469.72
for past medical expenses and for general damages and additional funds to
cover all trial costs and costs for the appeal.115
Judge LeBanc wrote a very short dissent, expressing his frustration with
the court’s ruling.116 First, Judge LeBlanc examined the statements from Mr.
Newman at the trial regarding how the bike was designed for adults
weighing up to 250 pounds and had even been successfully tested to loads
of 440 pounds.117 He declared that this evidence clearly established that the
plaintiff’s use of the Aero Cycle exercise bike was not the type of use that
the manufacturer should “reasonably expect of an ordinary person.”118 Judge
LeBlanc concluded that use of the Aero Cycle exercise bike by a 500-pound
person could not have been reasonably anticipated; therefore, a maximum
weight warning was unnecessary.119

D. Metzgar v. Playskool Inc.120


On February 12, 1990, Ronald Metzgar (“Metzgar”) placed his fifteen-
month old son, Matthew, in his playpen unsupervised for a few minutes.121
When he came back to check on his son five minutes later, he found
Matthew lifeless in his playpen.122 After calling 911 and removing the
Playskool block stuck in Matthew’s throat, Metzgar was still not able to
revive his son.123

112. Id.
113. Id. at 1038–39.
114. Id. at 1038.
115. Id. at 1040.
116. Id. (LeBanc, J., dissenting).
117. Id.
118. Id. (citing LA. REV. STAT. ANN. § 9:2800.53(7) (2006)).
119. Id.
120. 30 F.3d 459 (3d Cir. 1994).
121. Id. at 460.
122. Id.
123. Id. at 460–61.
648 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
The object that caused Matthew’s death was a Playskool purple column
block, measuring 7/8 of one inch wide by 1-3/4 inches long.124 Among the
forty-nine variously shaped blocks sold by Playskool, this particular block
was the smallest.125 Although Playskool did not place any warning on the
individual blocks or its box regarding a choking hazard, Playskool clearly
and boldly printed the words “Ages 1-1/2 - 5” on the front, back, and top of
the blocks’ box. Additionally, the shape and size of the small purple column
block complied with existing federal regulations and standards for
cautionary labeling and risk mitigation promulgated and enforced by the
Consumer Products Safety Commission (“CPSC”) under the Federal
Hazardous Substances Act.126 Furthermore, the small block from Playskool
also satisfied the small toy and toy part standards established by the
American Society for Testing Materials.127
Matthew’s parents filed a complaint against Playskool and K-Mart
Corp., the retailer where the blocks were purchased.128 Among other claims,
the complaint alleged that the small block was in a defective condition and
unreasonably dangerous for its intended users.129 The complaint also
asserted that Playskool failed in its duty to warn users of the small block’s
dangerous choking potential and that the “Ages 1-1/2–5” recommendation
was not an adequate warning of the block’s inherent hazardousness.130
The United States District Court for the Western District of Pennsylvania
granted defendants’ motion for summary judgment and dismissed the
plaintiffs’ action.131 The trial court found that even though choking on a
small block was slightly foreseeable, “[t]he historical risk of choking from
the Playskool blocks is so small that, even ignoring the issue of parental
supervision, the risk from the design as a matter of law is not
unreasonable.”132 The court held that by listing the age span on the box,
Playskool did not intend for a fifteen-month old to play with the blocks, and
that “[i]f the concept of intended use . . . is to retain any meaning
whatsoever, it necessarily means that use intended from the point of view of
the manufacturer putting a product into the marketplace.”133 The district
court further reasoned that when the danger is obvious, no warning is

124. Id. at 461.


125. Id.
126. Id.
127. Id.
128. Id.
129. Id.
130. Id.
131. Id.
132. Id. (citation omitted).
133. Id.
38:0633] CONSUMER PRODUCT WARNING LABELS 649
necessary, and because the probability of young children choking on a small
block is so obvious, the court could not sustain the plaintiffs’ failure-to-
warn negligence cause of action.134
The Third Circuit, however, vacated the district court’s ruling on the
summary judgment with respect to the product liability negligent failure-to-
warn claim.135 Judge Mansmann, writing for the majority, stated that
Pennsylvania law does not impose a duty to warn of obvious dangers and
risks.136 The court stated that for purposes of failure-to-warn actions, the
relevant community must hold a general consensus that a particular risk is
actually obvious.137 Two particular facts troubled the court as to a general
consensus of the safety of the small purple column block manufactured by
Playskool.138 First, Playskool itself deemed the block safe for its intended
use.139 Second, both of the deceased child’s parents, as well as his aunt,
testified at the trial that they did not believe that the small block posed an
obvious danger of asphyxiation to Matthew.140 Thus, the court reasoned that
given these facts, there could be no general consensus that the small block
posed an obvious safety hazard.141
Finally, the court concluded that the obviousness of the block’s
dangerous condition was a factual question for the jury, not one to be
disposed of on a motion for summary judgment.142
Although no judge gave a formal dissenting opinion, Judge Scirica
indicated in the majority opinion that he would have affirmed the summary
judgment in favor of Playskool.143 Judge Scirica briefly stated a few points
in favor of his view.144 First, he argued that the small block exceeded the
government’s CPSC’s minimum size standards for children three and
under.145 Additionally,
[w]here there is utility to the toy’s size, the toy is safe for children
of certain ages or under supervision, it is accompanied by
adequate warnings, and the statistical probability of the risk is
extremely low, the risk-utility analysis may preclude a negligent

134. Id.
135. Id. at 466.
136. Id. at 460, 465.
137. Id. at 465.
138. Id.
139. Id.
140. Id.
141. Id.
142. Id. at 466.
143. Id. at 462–63 n.6.
144. Id.
145. Id.
650 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
design claim. Otherwise, it would appear that every marble would
be subject to a negligent design claim. The only evidence on the
risk posed by the block consisted of statistics on children’s
choking injuries and deaths from congressional testimony, but
there was no evidence the choking incidents in the statistics
involved objects of comparable size to the purple block. Indeed,
Congresswoman Collins cited the statistics as evidence that
children were choking on toys that were, unlike the purple block,
smaller than the CPSC minimum.146

IV. IMPACT
Most often trial and appellate courts correctly decide product liability
failure-to-warn cases. However, even in those cases where the defendant
manufacturer is absolved of liability, the manufacturer often still has to pay
substantial attorney’s fees in defending itself, regardless of whether it uses
in-house attorneys or hires a private firm.147
The four previous cases as well as countless more148 illustrate the
principle that anything can happen in court. In Metzgar,149 the majority felt
that the district court’s dismissal of the failure-to-warn claim based on its
determination that the danger posed by the small Playskool block was
obvious was equivalent to holding that no reasonable jury could possibly
conclude otherwise.150 But if no reasonable jury really could have held
otherwise, then the Third Circuit should have upheld the summary judgment
in favor of the defendant manufacturer with respect to the products liability
negligent failure-to-warn claim. Little, if any, weight should be given to
parents who testify that the possibility of the small block becoming lodged
in their child’s throat never crossed their minds, and therefore, posed no

146. Id. (emphasis omitted).


147. Earlier this year, a Louisiana man sued Apple Computer, Inc., alleging that its iPods
are “inherently defective in design and are not sufficiently adorned with adequate warnings
regarding the likelihood of hearing loss.” Dan Goodin, Man Sues Apple Over Potential Hearing
Loss, ABC NEWS, Feb. 1, 2006, http://abcnews.go.com/US/wireStory?id=1567998. However,
all of Apple’s iPods include a warning that specifically cautions that “permanent hearing loss
may occur if earphones or headphones are used at high volume.” Id. While Apple would almost
surely prevail in court, at least against the failure-to-warn claim, Apple will certainly incur
substantial attorney’s fees in defending itself against this arguably frivolous failure-to-warn
claim.
148. See, e.g., Gamradt v. Fed. Labs., Inc., 380 F.3d 416 (8th Cir. 2004) (discussing how
the nature of the obvious risk of smoke inhalation from use of a black smoke grenade indoors
did not relieve a manufacturer of its duty to warn of a specific hazard of permanent lung
damage).
149. 30 F.3d at 459.
150. Id. at 465.
38:0633] CONSUMER PRODUCT WARNING LABELS 651
obvious danger. Every person, let alone a parent, knows that babies and
young children put nearly all objects within reach into their mouths. And if
the object is small and the baby or child swallows it, it may result in
asphyxiation—this is common sense. Additionally in Metzgar, the majority
brushed past Judge Scirica’s points too quickly,151 which is exactly what the
judge hinted at when he stated that “it would appear that every marble
[without a warning] would be subject to a negligent design [or failure-to-
warn] claim.”152
This same line of reasoning follows in response to the Montana Supreme
Court’s holding in Emery.153 Whether the mother actually looked on the
marshmallow package to check the consumer warnings before purchasing it
is very suspect. It may have happened as the plaintiff testified, but the vast
majority of Americans gloss over most warnings nearly all of the time.154
Moreover, some warnings have become so long that people feel
overwhelmed and give them little attention.155 One potential solution to this
dilemma is to design out the product flaws when possible, instead of merely
warning of the potential problems.156 In Skyhook Corp. v. Jasper, for
example, Skyhook manufactured a crane that could have been insulated
against electric shock for a few hundred dollars; instead, Skyhook simply
warned users never to bring the device within ten feet of a high-voltage

151. See supra text accompanying notes 145–46.


152. Metzgar, 30 F.3d at 462.
153. Emery v. Federated Foods, Inc., 863 P.2d 426 (Mont. 1993).
154. [E]veryday experience and observation tells us that on-product warnings are
routinely overlooked, ignored, and disobeyed for any number of reasons that
have nothing to do with the quality of the information or the manner of its
presentation. Warnings may get short shrift because the user is distracted or
hurried, or because the user chooses to follow the lead of friends or
coworkers rather than the admonitions on the warning label. Other times, the
user may ignore or disobey warnings because he has previous product
experience that has led him to conclude that the risk is minimal, or she may
have concluded that the “cost” in time or inconvenience of following the
warning outweighs the perceived risk of ignoring it.
Bowbeer & Killoran, supra note 35, at 756. Howard Latin readily admits that courts often
classify users’ failure to read product warning labels as “careless or deliberately risky.” Latin,
supra note 7, at 1207. Latin advocates, however, that most of the time, this failure to read or
notice warning labels is neither clearly unreasonable nor easily avoidable. Id. There are
numerous reasons for this failure, including functional illiteracy, predictably inattentive or
incompetent user groups, misplaced or unavailable directions, reliance on explanations by
intermediaries, reliance on general knowledge and experience, information overload, and
competing demands on time and attention. Id. at 1207–20.
155. Richard Wilner, A Label to “Bowl” You Over, N.Y. POST, Jan. 7, 2005, at 34 (stating
that product warning labels “have become so long that few of us read them anymore—even the
ones we should read”).
156. Latin, supra note 7, passim.
652 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
power line.157 Later, a worker guiding the load was electrocuted when a
power line came in contact with the crane’s lift cable.158 Ultimately, the
Supreme Court of New Mexico held in part that the crane’s warning was
adequate, as it reversed the appellate court judgment;159 however, legal
action could have been avoided by insulating the crane against electric
shock before it went to market.
Another prime example of designing out a potential product defect is
Apple Computer’s recent move to release a software update for both its
Nano and Video iPods, which will allow users to set their own maximum
volume level.160 Apple took this action in wake of at least one recent suit,
which alleged in part that Apple’s iPods are “inherently defective in design
and are not sufficiently adorned with adequate warnings regarding the
likelihood of hearing loss.”161 Even though all of Apple’s iPods include a
warning that specifically cautions that “permanent hearing loss may occur if
earphones or headphones are used at high volume,”162 Apple’s software
update will further minimize future failure-to-warn suits against the
company regarding the potential for hearing loss. After manufacturers
design out these product imperfections, consumers and users may be willing
to pay a premium for the safer, better designed products.163 On the other
hand, following this advice may make it more difficult for manufacturers to
effectively compete in this age of increasing pressure to cut costs in order to
stay competitive and profitable.
Cases like Metzgar v. Playskool Inc.164 and Emery v. Federated Foods,
Inc.165 create real problems for manufacturers. On all small products that are
designed and intended for small children’s use, it is difficult for
manufacturers to determine how extensive the warnings should be. At one
end of the spectrum, it is highly unlikely that any court in the future will
hold a manufacturer liable for not labeling each individual marble with a

157. 560 P.2d 934, 936 (N.M. 1977).


158. Id.
159. Id. at 938–39.
160. Associated Press, Apple Offers Max Volume Setting for iPods, MSNBC.COM, Mar. 29,
2006, available at http://www.msnbc.msn.com/id/12064988 [hereinafter Apple Offers Max
Volume Setting].
161. Id.; Goodin, supra note 147.
162. Goodin, supra note 147.
163. Many parents specifically avoid purchasing particular portable music players out of
concern that the players will damage their children’s ears. See, e.g., Apple Offers Max Volume
Setting, supra note 160. In light of this, these particular parents would very likely pay a
premium for portable music players, such as Apple’s new Nano and Video iPods, which allow
parents to set a maximum volume.
164. 30 F.3d 459 (3d Cir. 1994).
165. 863 P.2d 426 (Mont. 1993).
38:0633] CONSUMER PRODUCT WARNING LABELS 653
warning that it may cause severe damage or even death through suffocation
if swallowed. However, should a box of marbles contain an explicit
warning? There is little doubt that every manufacturer of marbles does in
fact have such a warning on its box somewhere. Every rational person
recognizes the open and obvious danger of suffocation that marbles (and
every other small object) pose to small children. It should not matter that
one particular parent is foolish or cannot foresee without a warning the
possibility of his or her child swallowing a marshmallow, small block, or
marble and suffocating. The courts are expected to look to what ordinary
consumers who purchase or use the product knew or should have known,166
and ordinary consumers know that these small objects present this obvious
risk.
The court in Hubbs v. Joseph Enterprises167 correctly dismissed the
plaintiff’s “Clapper” complaint. However, what is perhaps most interesting
about the decision is that the court did not rationalize its holding by stating
that the danger was open and obvious. The court could have said that senior
citizens generally know that they should not slam their hands or any other
body parts together in succession. Instead, the court equated a suggestion
included within “The Clapper” literature as a warning: “Senior citizens or
handicapped persons who find clapping difficult, may prefer to use an
inexpensive clicker (cricket), available at most novelty retailers.”168 This
case shows that courts will also reach out to find warnings at times to
achieve an equitable result, even though an explicit warning of a dangerous
condition was not actually given with the product.
In Dunne v. Wal-Mart Stores, Inc.,169 the court’s decision is baffling: a
quarter-ton woman caused a normal exercise bike to collapse, and the
manufacturer was held liable. Decisions and verdicts such as this might
again cause Mr. Bumble to remark, as he did in Dickens’ Oliver Twist, “the
law is a[n] ass—an idiot.”170 The woman should not have been looking for a
regular machine designed for people who are simply overweight, but rather
one that was specifically designed for the extremely obese. Furthermore,
anyone with a specific impairment or condition that the vast majority of
people do not share, whether physical or mental, should be in the habit of

166. See Maas v. Dreher, 460 P.2d 191, 193 (Ariz. Ct. App. 1969) (stating that the plaintiff
“testified that the condition which caused her injury was not in any way hidden or concealed
from her—that she knew what she was hitting when she purposely hit the corner of the lid of the
waste container. Under the circumstances, such a condition cannot be held unreasonably
dangerous.”).
167. 604 N.Y.S.2d 292 (N.Y. App. Div. 1993).
168. Id. at 293.
169. 679 So. 2d 1034 (La. Ct. App. 1996).
170. CHARLES DICKENS, OLIVER TWIST 462 (Penguin Books 1961) (1838).
654 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
checking particular products for personal compatibility before using them.
For example, a person with poor balance should take it upon herself to
investigate and then verify which treadmill model is specifically designed to
meet her poor balance impairment. Likewise, a person weighing 500
pounds should be required to look into which exercise equipment is
specifically designed and rated for those weighing over 500 pounds. It is
unreasonable for a 500-pound person to assume that all exercise equipment
will support her weight unless stated otherwise. After all, each of us is
usually in the best position to protect ourselves. If the law were to require
more personal accountability, far less frivolous failure-to-warn suits would
be filed.
Even if manufacturers know that certain risks are obvious, they still feel
compelled to provide warnings for these dangers for several reasons.171
First, in theory, the more warnings one has, the less likely one will be sued.
Even if a manufacturer would surely win in court, it could save considerable
money by avoiding litigation all together. Thus, while not designed for the
purpose of enlightening consumers about dangers (because rational users
will already know of them), these additional warnings on products may
discourage litigation and thus, save money.172 Second, sometimes courts err
and find that obvious dangers are not obvious after all.173 Therefore, to play
it safe, manufacturers feel pressure to warn of obvious potential harms
anyway.174
In this rush to add more superfluous warnings of obvious well-known
risks, manufacturers are recognizing a more serious problem: an increase in

171. According to Bob Dorigo Jones of the Michigan Lawsuit Abuse Watch, manufacturers
are often “scared of frivolous lawsuits, and so in addition to what’s legally required, they pile on
extra warnings to protect themselves.” 20/20: Products Contain Wacky Warning Labels Due to
Lawsuit-Crazed Society (ABC television broadcast Nov. 28, 2001) [hereinafter ABC 20/20]. “In
some cases a manufacturer has been held liable for failing to warn of an obvious risk or an
extremely remote risk associated with a product. From the manufacturer’s perspective,
therefore, there is legal incentive to eschew selective warnings for extremely detailed
comprehensive warnings.” Victor E. Schwartz & Russell W. Driver, Warnings in the
Workplace: The Need for a Synthesis of Law and Communication Theory, 52 U. CIN. L. REV.
38, 60 (1983) (citations omitted).
172. See Apple Offers Max Volume Setting, supra note 160 (“To avoid litigation costs, . . .
companies are issuing warnings even though they’re not mandated to do so for so-called open
and obvious dangers.”); cf. Eli P. Cox III et al., Do Product Warnings Increase Safe Behavior?
A Meta-Analysis, 16 J. PUB. POL’Y & MARKETING 195, 195 (1997) (“Warnings now appear on
thousands of products as a result of manufacturers’ concerns for user safety, fear of litigation,
legal requirements, and industry standards. However, surprisingly little is known about their
effectiveness in preventing accidents and injuries.”).
173. See Schwartz & Driver, supra note 171. See generally Dunne, 679 So. 2d 1034.
174. See Schwartz & Driver, supra note 171; see, e.g., infra text accompanying notes 179–
83.
38:0633] CONSUMER PRODUCT WARNING LABELS 655
consumer warnings may overwhelm product consumers and users such that
more applicable and useful warnings may become less easy to find and
understand.175 The New York Court of Appeals made precisely this point in
Liriano v. Hobart Corp.:
[R]equiring a manufacturer to warn against obvious dangers could
greatly increase the number of warnings accompanying certain
products. If a manufacturer must warn against even obvious
dangers, “the list of foolish practices warned against would be so
long, it would fill a volume.” Requiring too many warnings
trivializes and undermines the entire purpose of the rule, drowning
out cautions against latent dangers of which a user might not
otherwise be aware. Such a requirement would neutralize the
effectiveness of warnings as an inexpensive way to allow
consumers to adjust their behavior based on knowledge of a
product’s inherent dangers.176
Given the overabundance of consumer warnings on many of today’s
products, which potentially make the important warnings difficult to find,
manufacturers may face liability for not making the critical warnings more
easily accessible.177 These issues have yet to be decided, but manufacturers

175. See Cotton v. Buckeye Gas Prods. Co., 840 F.2d 935, 937–38 (D.C. Cir. 1988).
Failure-to-warn cases have the curious property that, when the episode
is examined in hindsight, it appears as though addition of warnings keyed to
a particular accident would be virtually cost free. What could be simpler than
for the manufacturer to add the few simple items noted above? The primary
cost is, in fact, the increase in time and effort required for the user to grasp
the message. The inclusion of each extra item dilutes the punch of every
other item. Given short attention spans, items crowd each other out; they get
lost in fine print . . . .
Plaintiff’s analysis completely disregards the problem of information
costs . . . . If every foreseeable possibility must be covered, ‘the list of foolish
practices warned against would be so long, it would fill a volume.’ Unlike
plaintiff, we must review the record in light of these obvious information
costs.
Id. (citations omitted); Broussard v. Cont’l Oil Co., 433 So. 2d 354, 358 (La. Ct. App. 1983)
(“As a practical matter, the effect of putting at least ten warnings on the drill would decrease the
effectiveness of all of the warnings. A consumer would have a tendency to read none of the
warnings if the surface of the drill became cluttered with the warnings.”); see also Kerr v.
Koemm, 557 F. Supp. 283, 288 n.2 (S.D.N.Y. 1983); Finn v. G. D. Searle & Co., 677 P.2d
1147, 1158 (Cal. 1984); Dunn v. Lederle Labs., 328 N.W.2d 576, 580–81 (Mich. Ct. App.
1982).
176. 700 N.E.2d 303, 308 (N.Y. 1998) (quoting Kerr, 557 F. Supp. at 288 (S.D.N.Y. 1983).
177. Consider for a moment the recent suit by a Louisiana man against Apple, alleging in
part that Apple failed to provide “adequate warnings regarding the likelihood of hearing loss”
with its iPods. See supra note 147. Arguably, such a warning is not necessary because it merely
warns of an obvious danger. Nevertheless, all of Apple’s iPods include a warning that
specifically cautions that “permanent hearing loss may occur if earphones or headphones are
656 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
cannot ignore them. Furthermore, if a product’s package contains many
warnings, manufacturers may want to consider modifying the text of the
most important parts of the warnings to draw more attention to them. If
manufacturers take this extra step, however, they may later face liability for
not bolding enough parts/sentences or not using all capital letters in certain
areas.178 One possible solution to the confusion over the deluge of warnings
on labels that many manufacturers have discovered is to include a toll-free
phone number and/or website address for consumers and users to resolve
their questions and concerns. This way, those consumers who wish to
investigate more fully the dangers indicated on warning labels can do so.
However, this method of warning distribution should not be used to replace
traditional on-product warnings entirely, but rather as a supplement to the
most important warnings displayed on the product’s packaging.
At times, one may wonder if manufacturers have employees whose sole
purpose is to conjure up off-the-wall things consumers will do with
products so that manufacturers can warn accordingly and protect themselves
from possible litigation. Consider the Michigan Lawsuit Abuse Watch’s

used at high volume.” Id. However, if such a danger were not actually obvious, there is a
realistic argument that Apple’s warning concerning hearing loss is inadequate. It took me a few
minutes to find this specific warning in the material which accompanied my new Apple 30GB
Video iPod, and I knew exactly what I was looking for. The warning is not on any physical
paperwork or the box accompanying the iPod. Instead, it is buried at the top of page sixty-one of
a sixty-nine-page manual in .pdf format on the installation CD that accompanies each iPod. By
installing the iPod software, this Features Guide is automatically installed onto the computer
and can be accessed from the Start menu.
Nevertheless, this particular warning regarding the possibility of hearing loss underscores
the difficulty manufacturers and sellers face when providing warnings only in electronic form.
First, many product users may not be computer savvy enough to find the electronic product
manual with its accompanying warnings on their computers. Thus, product manufacturers and
sellers completely miss any opportunity to warn this particular group, as these individuals will
not even be aware of the manual’s existence, location, or both. Secondly, even assuming the
product users are computer savvy enough to find the electronic product manual, there is an
excellent chance that they will not ever see the critical warnings, as manuals such as the iPod’s
Features Guide contain so much information in addition to warnings. Many products users
never read lengthy printed manuals, let alone those in electronic form on computers.
Furthermore, finding a critical warning in any electronic product manual may prove very
difficult, especially when the user is reading the manual on the computer itself.
As we move further into the digital era, it will be interesting to see how courts treat
electronic warnings that accompany products (e.g., Apple’s various iPods) that interact with
computers. While today there may be relatively few computer-interactive devices, this market
segment will grow tremendously in the near future. On one hand, using media like a CD to
distribute product information and warnings is helpful because the manufacturers and sellers
can easily and cost-effectively provide an almost limitless supply of information. But that
information may have a price, which is that the most critical data, including product warnings,
may become more difficult to find.
178. See supra text accompanying note 17.
38:0633] CONSUMER PRODUCT WARNING LABELS 657
annual Wacky Warning Label Contest.179 This year’s contest marks the
ninth time that the Michigan Lawsuit Abuse Watch has held the event.180
The winner of this year’s contest was a “heat gun and paint remover that
produces temperatures of 1,000 degrees and warns users, ‘Do not use this
tool as a hair dryer.’”181 Last year’s top prize went to a “flushable toilet
brush that warns users, ‘Do not use for personal hygiene.’”182 Additionally,
other top finishers from the prior contests include the following:
• A label on a baby stroller warns: “Remove child before
folding”
• A brass fishing lure with a three-pronged hook on the
end warns: “Harmful if swallowed”
• A popular scooter for children warns: “This product
moves when used.”
• A nine- by three-inch bag of air used as packing material
cautions: “Do not use this product as a toy, pillow, or
flotation device.”
• A digital thermometer that can be used to take a person's
temperature several different ways warns: “Once used
rectally, the thermometer should not be used orally.”
• A household iron warns users: “Never iron clothes while
they are being worn.”
• A label on a hair dryer reads, “Never use hair dryer while
sleeping.”
• A warning on an electric drill made for carpenters
cautions: “This product not intended for use as a dental
drill.”183
After reading these warnings, there is little doubt that manufacturers feel
pressure to conjure up bizarre uses for their products and then warn
accordingly to shield themselves from potential litigation. Better safe than
sorry may not be a bad policy.
This level of warning also reveals something else. When something goes
wrong, many Americans are quick to point the finger and sue.184 As a result,

179. Michigan Lawsuit Abuse Watch, Heat Gun That Warns: “Do Not Use As Hairdryer”
Wins Top Prize In M-Law’s Ninth Annual Wacky Warning Label Contest,
http://www.mlaw.org/wwl/index.html (last visited Apr. 2, 2006).
180. Id.
181. Id.
182. Michigan Lawsuit Abuse Watch, Past Winners Of M-Law’s Wacky Warning Label
Contests, http://www.mlaw.org/wwl/pastwinners.html (last visited Apr. 2, 2006).
183. Id.
658 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.
some commentators argue that these suits handicap the American economy
and make it less competitive globally.185 The “tort tax” “represents as much
as thirty percent of the price of a stepladder, over ninety-five percent of the
cost of childhood vaccines, one-quarter of the price of a ride on a Long
Island tour bus, one-third the cost of a small airplane, and actually exceeds
the cost of making a football helmet.”186
One solution is to require the losing party in a failure-to-warn suit to pay
the other’s attorney fees. This may strongly discourage these types of
arguably frivolous suits. However, it may also dampen valid claims as well,
externalizing these costs to the consumers when they should legitimately be
internalized by manufacturers. Manufacturers will know that few people

184. See Mark A. Hoffman, Common Good Fights Against Litigious Culture, BUS. INS.,
Apr. 29, 2002, at 40 (explaining how a “culture of litigiousness” is fundamental problem in
society); Sara Miller Llana, When Students Get Rowdy, Should Colleges Step In?, CHRISTIAN
SCI. MONITOR, Oct. 14, 2005, at 2 (quoting Sheldon Steinbach, general counsel for the
American Council on Education, who referred to “21st-century litigious America”); Emma
Schwartz, Pushing Back On Patents, LEGAL TIMES, Dec. 5, 2005, at 1 (referring to America’s
litigious culture); see also Gary Crooks, Pop Torts: Facts Clog ‘Lawsuit Abuse’ Claims,
SPOKESMAN REVIEW (Spokane, Wash.), Nov. 6, 2005, at B7 (claiming that the American
business community is overly litigious); cf. Kimberlianne Podlas, As Seen on TV: The
Normative Influence of Syndi-Court on Contemporary Litigiousness, 11 VILL. SPORTS & ENT.
L.J. 1, 1–8 (2004) [hereinafter Podlas, As Seen on TV] (explaining claims of American
litigiousness and how they are more a “popular mythology than empirically-supported reality”).
According to Bob Dorigo Jones of the Michigan Lawsuit Abuse Watch, the phenomenon of
wacky warning labels is really the “result of living in a society that at any given time has 70,000
product liability lawsuits pending, compared to all of Great Britain with 200.” ABC 20/20,
supra note 171.
185. See Podlas, As Seen on TV, supra note 184, at 6–7. “The risk of litigation may even
deter businesses from developing new products, and contribute to the decline of the economy.
One survey found that 60% of corporate executives insisted that civil litigation hampered the
ability of U.S. businesses to compete globally.” Id. at 7 (footnote omitted); see also
Kimberlianne Podlas, Broadcast Litigiousness: Syndi-Court’s Construction of Legal
Consciousness, 23 CARDOZO ARTS & ENT. L.J. 465, 467 (2005) (“Politicians tell us that the
resulting damage awards [from tort litigation] range from the excessive to the nonsensical and
threaten our economy.”).
Many critics of the legal system focus their attack on the costs of tort
litigation against business, sometimes called the “tort tax.” They allege that
excessive litigiousness imposes considerable unwarranted costs upon
producers, often driving them out of business. Those companies that can bear
the costs and remain in business suffer from reduced competitiveness in the
global marketplace. If that is the case, then the overall U.S. economy, with its
relatively large number of lawyers, would suffer.
Frank B. Cross, Lawyers, The Economy, and Society, 35 AM. BUS. L.J. 477, 504–05 (1998)
(footnote omitted).
186. Dick Thornburgh, America’s Civil Justice Dilemma: The Prospects for Reform, 55
MD. L. REV. 1074, 1075 (1996) (citations omitted); see also Podlas, As Seen on TV, supra note
184, at 7 (“This so-called ‘tort tax’ has been estimated at $300 billion per year.”).
38:0633] CONSUMER PRODUCT WARNING LABELS 659
could take the chance of losing in court and being required to pay thousands
or even hundreds of thousands of dollars to cover the manufacturer’s
attorney fees. The real problem with this solution is that it would not
discriminate against frivolous failure-to-warn suits from valid failure-to-
warn claims. Likewise, if manufacturers coupled arbitration clauses with all
of their products, they will likely avoid much litigation. However, these
clauses would have the same effect of not discriminating against frivolous
failure-to-warn suits from valid failure-to-warn claims.
An anonymous person’s solution: “I’m not saying there should be a
capital punishment for stupidity, but why don’t we just take the safety labels
off of everything and let the problem solve itself?”187

V. CONCLUSION
As many verdicts illustrate, there is no easy solution for manufacturers
with regard to consumer product warning labels. Nevertheless, labels should
always be extensive enough to cover the most important dangers. To
discourage future litigation, however, it may not be a bad idea to include
extra warnings of arguably obvious dangers. Although, in this rush to add
more labels to warn of obvious well-known risks, manufacturers may run
into another important problem. Increases in consumer warnings may
inundate consumers and users such that more applicable and useful
warnings will become less easy to find and understand. For this reason,
these additional warnings could turn counterproductive and actually subject
manufacturers to liability for not making the key dangers more accessible.
The future holds one certainty for consumer product warning labels:
more litigation. Regardless of manufacturers’ best efforts, suits that
question whether a particular danger was open and obvious and whether a
corresponding warning should have been given will continue. Thus, in
addition to warning against using a superman suit for flight, maybe its
makers should also warn against withstanding bullets and everything else
short of kryptonite. After all, just when you make something idiot proof,
they build a better idiot.

187. A Google search of this quote yields almost 50,000 results. Thus, it is difficult to know
who the actual author is.