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Riley v. American Honda Motor Co.6/22/1993
mony may be speculative or self-serving and that a plaintiff may die before the testimony is given are not unique to this cause of action. In any event, these concerns are a red herring in the case before us where Riley had a full and fair opportunity to present his case and simply did not establish a prima facie case of failure to warn.
Finally, the dissent argues that the presumption is consistent with the policy behind strict products liability. This may be so; so too would many other changes in a plaintiff's burden of establishing a prima facie case — including the elimination of any burden at all — be consistent with that policy. We are unwilling to shift the respective parties' burdens in such a fashion. In order to rebut a presumption of causation, the defendant would need to prove that the warning would not have altered the plaintiff's conduct or that the plaintiff's own negligence caused the injury . See 63 Am.Jur.2d, Products Liability, § 358 (1984). A defendant certainly is in no better position to rebut a presumption which totally excuses a plaintiff from meeting the causation element than a plaintiff is in establishing the causation element as part of the prima facie case.
We conclude that the District Court did not err in directing a verdict on the failure to warn claim.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, and WEBER concur.
JUSTICE McDONOUGH respectfully dissents.
Riley is entitled to a rebuttable presumption that he would have followed the warning if such a warning had been given. Thus he would have satisfied the causation element of his failure to warn claim in the court's consideration of the motion for a directed verdict.
The failure to warn case of product liability is different from the usual products liability case and adherence to the products liability causation criteria is an example of ossification. In a failure to warn case it is not the product itself which is unreasonably dangerous because of a defect in it, but that it is rendered unreasonably dangerous due to the failure to warn and inadequate labeling. Generally it is common sense that if an adequate warning has been presented or given the plaintiff would have read it and taken heed. For the plaintiff to actually testify as to whether or not he would have actually done it, is purely speculative in nature and self serving and in some cases would be impossible due to a death or lack of communication skills on the part of the plaintiff. See 53 A.L.R.3d 239, 247. In Harlow v. Chin (1989), 405 Mass. 697, 545 N.E.2d 602, 606, the court stated "The law permits an inference that a warning, once given, would have been followed." The reason the law imposes a duty to give notice in the first place is the assumption that, because of the danger not commonly known to users, a warning is needed, and if given, will be heeded.
Comment j to the Restatement (Second) of Torts, § 402(a), 1965, states that when the warning is given, the seller may reasonably assume that it will be read and heeded, and when the product has such a warning, which is safe for use if it is followed, such product is not in a defective condition nor is it unreasonably dangerous. By the same reasoning it is rational to grant a presumption that if the product should have a warning and if there had been a warning, it would have been read and acted upon to so minimize the risk.
In the first instance the rebuttable presumption benefits the manufacturer and in the second instance the rebuttable presumption benefits the injured. Placing the burden of rebutting this presumption of causation in the second example on the man
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