Product Liability -- 2016

Linert v. Ford Motor Co.   (Ohio Supreme Court)

Post-sale duty to warn

This case involves the justification of a lower court upholding a state law which requires manufacturers to provide post-sale warnings of “any known risk” for products they have made. In this case a police officer was harmed by a car accident attributable to a reckless driver crashing into him. His police vehicle was found to have met all federal safety standards and the jury found it to be non-defective. The jury rejected three theories of tort liability against Ford, the maker of the officer’s vehicle, but was allowed to decide if Ford violated the law by not warning the officer post-sale of hazards that could possibly harm him. Ohio imposes on manufacturers a duty to act as would a reasonable manufacturer in the same circumstance, but the appeals court decision requires manufacturers to warn consumers post-sale of any known risk in using a product, even if the product is not defective, even where the risk of harm from using the product is unlikely and insubstantial, and even when the asserted risk in the product is merely the difference between that product and a newer product model that includes a manufacturer’s improvement.

The NAM and other business groups filed an amicus brief to reverse this aberrant appellate court precedent. We argued that a post-marketing duty to warn requires consideration of the likelihood and seriousness of potential harm, not merely that there is any known risk. Manufacturers generally have no duty to warn consumers based on post-sale safety improvements. The decision to penalize manufacturers with mandatory warnings for product improvements also amounts to a court-crafted “innovation tax”. This will create disincentives for manufacturers improving their products if the cost of warning people about minor improvements will outweigh the benefits.

This expansion of consumer remedies is unnecessary because of existing product liability legal standards, as well as federal protections from both the National Highway Traffic Safety Administration and the Consumer Product Safety Commission.

On Dec. 29, 2016, the court interpreted the Ohio law at issue to apply a duty to warn in two situations: when the manufacturer knows of a hazard at the time of sale, and when the manufacturer learns after a sale of other risks. It ruled that evidence that the company knew prior to the sale is not relevant to a claim based on a failure to warn after the sale. It also ruled that whether there is a post-sale duty depends on the likelihood of the risk of harm to consumers and the seriousness of the harm that the risk presents. In this case there was insufficient evidence on the likelihood that the car posed the risk claimed.

Related Documents:
NAM amicus brief  (August 17, 2015)


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