Part 2: Proximate Cause in Warnings Cases

Plaintiff’s Side

TASA ID: 4009

In many product liability cases there is something missing from an existing warning and instruction - some safety information which arguably the plaintiff did not know at the time of the accident. It may be relatively straight forward to figure out whether or not the existing warning was defective by reference to items like the ANSI Z353 Standards, signal word, color, conspicuity, language, grade level word choice, whether or not the warning adequately explains the hazard and the consequences of not heeding the warning and whether or not the warning explains what to do to avoid the hazard.  All of these are items which in general make a warning more likely to be noticed, read, understood and heeded.  That is exactly why the standards and authorities require them.  

Besides determining whether or not an existing warning was defective, jurors are also tasked with evaluating a hypothetical about whether or not the plaintiff’s actions would have been different if different warnings and instructions had been present.  This can be a much tougher task.


Time Travel:

A common plot theme in science fiction stories is having someone traveling back in time to change history. The time traveler attempts to erase some bad event which has already occurred by making some small change in the event sequence leading up to that bad event. Science fiction stories typically feature some unexpected results when someone uses a time machine to go back and change something.
It would be hard enough to accurately predict the effect of changes in an event sequence with the aid of a time machine, but in evaluating proximate cause issues in warnings cases, jurors don’t have a time machine to try it out.  Instead, they have to mentally play a “what if…” game.  Suppose someone was injured by microwaving a gizmo which did not have a proper warning against this. Suppose that instead there had been a better warning sign, one which said “DANGER, Never Microwave this Gizmo, because it may Explode!”  Would that warning sign change have prevented this particular accident? It can be exceedingly difficult for a juror to evaluate proximate cause in a warning case when there is a mediocre warning already present.  


Open and Obvious versus Hidden Danger:

It is generally accepted that hidden dangers need to be warned against, but that there is no need to warn against a danger which is open and obvious.  The difficulty here is determining what is open and obvious in a particular circumstance.  Jurors often attempt to answer by imagining themselves in the position of the plaintiff at the time of the accident.  What would they themselves have done in the circumstances?

Juror Identification with the Plaintiff:

With respect to damages, Plaintiffs desire that a juror identifies with the plaintiff.  Plaintiffs want the juror to imagine what it would be like for the juror himself to be the one suffering the injuries.  With respect to issues of whether or not a different warning would have prevented a particular accident, this may not be fair to the plaintiff. 

Background – Warnings in Contemporary American Society:

Jurors have to make their own judgments as to the likelihood that a plaintiff’s behavior would have been changed by a different and better warning.  Jurors make these judgments against a background in which they are bombarded with warnings in the course of their ordinary daily lives.   Ordinary everyday products carry excessive and burdensome warnings which no one with the slightest common sense would need. (Does an opaque cardboard windshield screen for an automobile need a warning telling the driver to remove it before driving the car?)  

People commonly believe that current products carry far too many warnings.  They believe that the warnings are not present to improve safety, but rather that they are present in order to help insulate manufacturers from spurious law suits.  People also believe that these warnings, and the lawsuits which inspire them, are unduly burdensome to manufacturers and that individuals need to take more personal responsibility for their actions.  

In their own personal lives, jurors will have themselves regularly and routinely skipped and/or skimmed over warning instructions which they will have deemed superfluous and existing not for safety, but rather to satisfy some lawyer strategy to avoid lawsuits.

Anti-Warnings Bias in Jurors:

For the reasons described above, jurors often start out with a general bias against plaintiffs in warnings cases.  They believe that these lawsuits are unfair to manufacturers and that individuals need to take on more personal responsibility for their actions.  

Problems with Juror Introspection:

There are a number of obstacles to achieving a fair verdict when a juror tries introspection – “What would I have done in that situation?” First, each juror comes to the decision with (1.) his own pre-trial knowledge of devices like the one involved (anywhere from none to-extensive) and (2.) his own activity temperament (anywhere from slow and methodical considerations to rapid and gut feel choices). The juror’s pre-trial product knowledge and risk temperament may well be substantially different from that of the plaintiff.  The juror’s evaluation of how a warning would affect the juror himself might well be quite different from how the warning would have affected the plaintiff.

Juror introspection is further distorted because the juror has the benefit of both hindsight and trial supplied education about the danger involved before pondering this question at the conclusion of the trial.

Jurors are instructed to withhold their conclusions until they have heard all of the evidence.  The inevitable result is that by the end of the trial jurors cannot view the danger the same way in which the plaintiff did at the time of the accident. The trial itself inevitably provides an intense and focused safety education to the juror beyond anything which the plaintiff had.   Before coming to a verdict, the juror learns that there has been a severe accident, learns what went wrong, learns how the accident could have been avoided, etc. The plaintiff may have made an instant decision while focused on other matters, the juror makes a less rushed narrowly focused decision.  By the time the trial has ended it is difficult for a juror to fairly place himself in the position which the plaintiff was at the time of the accident.

Crossword Puzzles:

Have you ever come across a crossword puzzle which has already been filled in and then you’ve looked at the clues?  The correct answers seem to flow very easily from the clues when you already know what the correct answers are.  You think to yourself – “I could have figured that out myself without having first seen the answer.”  But we often delude ourselves in this way.  Have you ever been stumped in working out a crossword puzzle, peeked at the answer, and then thought something like “Wow, I should have figured that out from the clue.  I don’t understand how I missed it.”  

What Can Plaintiffs Do to Overcome Trial Education Bias in Jurors?

Jurors must be reminded that when they try to put themselves into the place of the plaintiff at the time of the accident, they are approaching the situation with an educated hindsight.  They are approaching from a viewpoint which the plaintiff did not have.  Jurors should be told at the beginning of the trial that by the end of the trial they may well have learned enough about the product so that if they were to use the product, then they themselves would not need the warning because they would have learned all of the elements of the alternative warning from other parts of the trial.

Rather than imagining that they are the plaintiff, jurors should instead imagine that they are the manufacturer.  They should put themselves into the role of the manufacturer, knowing all of what they know at the end of the trial about the product.  From that vantage point they should consider what they would do to help users of the product have a reasonable opportunity to stay safe.

Educated Choice:

A proper warning cannot guarantee that the person reading it will read and heed it and thereby an accident will be prevented.  What a proper warning can and must do is ensure that the person using the product can make a knowledgeable, informed choice in how to use the product.  That is what the manufacturer should provide and that is what a juror should be focusing on.  If a juror tries to evaluate proximate cause by a kind of introspection about what he himself would have done, then the result will likely be affected by a trial induced bias against the plaintiff.  Absent overwhelming evidence to the contrary, a plaintiff is entitled to a presumption that he would have noticed, heeded and followed proper warning and instructions.

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA. Contact for any questions.

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