 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Riley v. American Honda Motor Co.6/22/1993
angerous, the seller may be required to give directions or warning, on the container, as to its use.
Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.
Some courts interpret this language as creating a rebuttable presumption which works in favor of a seller where an adequate warning is given. Where no warning is given, however, courts have construed this language as giving rise to a rebuttable presumption that the consumer would have read an adequate warning and acted to minimize the risks inherent in the use of the product. See Reyes v. Wyeth Laboratories (5th Cir. 1974), 498 F.2d 1264, 1281; Williams v. Lederle Laboratories, Div. of American Cyanamid Co. (S.D.Oh. 1984), 591 F. Supp. 381, 386-87; and Snawder v. Cohen (W.D.Ky. 1990), 749 F. Supp. 1473, 1479.
Riley asserts that this Court has adopted Comment j in its entirety and, therefore, that the presumption of causation is applicable to his failure to warn claim. We disagree. Our adoption of Restatement (Second) of Torts § 402A (1965) was not a wholesale adoption of the comments accompanying that provision; nor are we constrained by the comments in developing a body of products liability law. Stenberg v. Beatrice Foods Co. (1978), 176 Mont. 123, 128-29, 576 P.2d 725, 729. It is true that we have cited to Comment j in recognizing the failure to warn claim itself. See Rost v. C.F. & I. Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, and Krueger v. General Motors (1989), 240 Mont. 266, 278, 783 P.2d 1340, 1348. However, we have not adopted the specific language in Comment j that — in the view of many courts — gives rise to a rebuttable presumption regarding causation.
In developing a body of Montana products liability law, this Court consistently has required a plaintiff to establish a causal link between the lack of a warning and the accident and injuries in a failure to warn claim. Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 110, 576 P.2d 711, 719; Rost v. C.F. & I. Steel Corp. (1980), 189 Mont. 485, 490, 616 P.2d 383, 386; Dvorak v. Matador Service, Inc. (1986), 223 Mont. 98, 106, 727 P.2d 1306, 1311; Krueger v. General Motors (1989), 240 Mont. 266, 278, 783 P.2d 1340, 1348. We decline to depart from this approach in the case before us.
It is true that there are policy arguments to be made in support of the rebuttable presumption. These arguments are ably advanced by the dissent, notwithstanding Riley's reliance on his assertion that we previously have adopted the presumption. The dissent's policy arguments, however, do not convince us to abandon the traditional causation element and allow Riley to survive a directed verdict without establishing a prima facie case.
First, the dissent contends that it is "common sense" that if an adequate warning is given the plaintiff would have read and heeded it. While this might be common sense in an ideal world, our own experience does not support it; warnings are everywhere in the modern world and often go unread or, where read, ignored. We conclude that the presumption is not appropriate running in either direction, to the manufacturer/seller where a warning is given or to a plaintiff where it is not.
Next, the dissent raises the perceived difficulties involved in requiring a plaintiff to establish the causation element. We note that the evidence required to establish this element is not qualitatively different than other testimony given by a party in support of her or his prima facie case. Concerns that the testi
Page 1 2 3 4 5 6 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|