Failure to warn; not so nutty. Law Office

Apr 11

Failure to warn; not so nutty.

I’m eating a healthy breakfast of “Cashews And Hibiscus”. This is noteworthy not because I’m eating a dried flower. Rather, besides the large label “Cashews and Hibiscus,” the ingredients are listed, not surprisingly, as “Roasted Salted Cashews (Cashews, Salt, Rice Bran Oil), Dried Hibiscus,” and so on. And after the ingredients, there is this warning in bold and capital letters: “CONTAINS CASHEWS.” They had me at “Cashews And Hibiscus”.

Making fun of warning labels has been the subject of Wacky Warning Label contests (A letter opener that says, “Caution: Safety goggles recommended.” and my favorite, a Vanishing Fabric Marker that warns: “The Vanishing Fabric Marker should not be used as a writing instrument for signing checks or any legal documents.”) The labels also have been offered up as proof of an overly litigious society. Unfortunately, companies and consumers should have legitimate concerns about misuse of products. A suit filed in U.D. District Court for the District of Utah on March 21 is a deadly reminder.

According to the complaint filed against The Coleman Company Inc. by the Estate of Steven Dowdy and the heirs of Darian Thomlinson, the 28-year-old Dowdy and 10-year-old Thomlinson were killed by carbon monoxide when they “used a propane radiant heater and a propane lantern for warmth within a tent.” The lawsuit alleges, among other things, that the warnings and instructions for the heater and lantern were defective because they failed to advise users of the risk of carbon monoxide and of the amount of ventilation needed for safe operation of the heater and lantern. The suit further claimed liability based on the Coleman tent not providing appropriate warnings “regarding the hazard of using propane burning products” within the tent without appropriate ventilation.

Whenever a serious injury results from the use of a product, plaintiff attorneys will (and should) look to see whether there were adequate warnings. And company attorneys now make that same inquiry before a product goes on the market. It was not always that way. You can thank litigious lawyers for the change.

Law Education