If a retailer, manufacturer or distributor does not put adequate warnings on a label, then they could be held responsible for any injuries that the consumer suffers. Below are some of the possible elements of failure to warn cases and the defenses that can arise:

Strict Products Liability

The defendant will be held responsible for any product defects, regardless of whether the business or company acts in a negligent manner. If the company does not provide adequate warnings, then this is a considered a product defect in a strict liability case. A strict liability case could be disputed if the risk of injury that the plaintiff suffers is an obvious one. It could also be disputed if the plaintiff suffers an injury that is unavoidable.

For example, the producers of matches are not required to warn that matches could start a fire. However, there was a case recently where an automobile manufacturer was help liable because it did not warn that if the driver is overweight, then the seat could collapse backwards if a wreck occurred.


There are only a few states that follow an ordinary negligence rule. In order to prove that a business was negligent, the plaintiff must show that the defendant had a duty, breached the duty and the plaintiff’s injuries were caused by the breach of duty. The main issue that has to be determined in a negligence case is whether the risk was very obvious and no warning was necessary, or there was no way to predict the risk.

Predictable Misuse Or Intended Use Of The Product

Did the plaintiff misuse the product or use it as intended? This is another very important question that has to be asked. The defendant may not be held liable if they could not predict the misuse of the product. However, if the risks were not obvious, and the defendant could have predicted the misuse, then they could be held liable.

The Warning Has To Be Conspicuous

Manufacturers are required to place warnings on their product. The warnings must be visible.

Defendant Must Be Knowledgeable Of The Risks

Just because a defendant does not know about the risks, does not mean that he or she will not be held responsible. Companies are responsible for testing, researching and investigating their products so that they can understand the risks.  If you believe you’re a victim of health risks and complications due to not receiving a legitimate ‘failure to warn’ from a physician or medication you’ve taken, speak with one of our medical malpractice attorneys at Zimmerman & Frachtman today for a free consultation.