Drilling Down: The Duty to Warn

By Brian A. Comer

I have been doing some research on South Carolina warnings law lately, and now is as good a time as any to provide some further explanation on this area of products liability law. I always enjoy cases involving warnings, primarily because I never cease to be amazed at how different sides of the bar can have totally divergent views on whether a specific warning is "adequate."

No South Carolina state court (that I have found) explicitly sets forth when the duty to warn arises in a products liability case. However, in Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971), the Fourth Circuit Court of Appeals provided extensive guidance on the duty to warn in an appeal of a South Carolina products liability action arising in diversity, and the South Carolina Supreme Court cited to Gardner’s rationale in its negligent failure to warn analysis in Livingston v. Noland Corp., 239 S.C. 521, 362 S.E.2d 16 (1987). Gardner supports that the duty to warn arises when (a) the reasonably foreseeable risks of a product – either from its intended use or from the environment in which it is used – pose a potential danger, and (b) the user may not realize the potential danger. In such cases, the manufacturer and supplier has a duty to warn the user. Gardner, 448 F.2d at 242-43; Livingston, 293 S.C. at 525, 362 S.E.2d at 18.

Gardner involved the ignition of hair rollers when the water in which they were heating boiled out of the pot. Id. at 240-41. After putting the rollers on the stove to heat, the user fell asleep in the bathtub. Id. at 241. The resulting fire substantially destroyed the apartment building, and the building owner sued the hair roller manufacturer to recover his losses. Id. at 240. One of his theories for recovery was that the manufacturer’s warning about the flammability of the rollers was inadequate. Id. The warning at issue stated as follows: “Use plenty of water. Do not let water boil away. Cautionary note: Rollers may be inflammable only if left over flame in pan without water. Otherwise Q.H.S. Setting/Rollers are perfectly safe.” Id. at 241.

The district judge granted a directed verdict in favor of the manufacturer on grounds that the hair rollers were not “inherently dangerous.” Id. at 240. Therefore, the manufacturer had no duty to provide a more extensive warning than the one provided. Id. On appeal, the Fourth Circuit rejected the district judge’s focus on the inherent danger of the rollers as the determinative factor for the manufacturer’s duty to warn. Id. at 242. Instead, the court suggested that the duty to warn arises if a supplier and manufacturer “(a) . . . know or have reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, [and] (b) they lack reason to believe that the user will realize the potential danger. . . . “ Id. at 242 (citing Restatement (Second) of Torts §§ 388 and 295 (1965)). The court elaborated that the duty is determined through an analysis of foreseeability, and it cited to Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969) as the applicable South Carolina law. Gardner, 448 F.2d at 242-43. The court quoted from Mickle as follows:

Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold: thus he is expected to reasonably foresee only injuries arising in the course of such use. However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risk of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured.

Id. (quoting Mickle, 252 S.C. at 233, 166 S.E.2d at 187).

Using this framework, the court determined that a jury could conclude that a momentary interruption that results in water boiling away is so common that the manufacturer should have foreseen that it could occur while its product was being used. Id. at 243. The court also concluded that a jury could find that the manufacturer knew or should have known that the heat to which the product would be subjected during those occasions could exceed the normal ignition point of the hair roller’s contents. Id. Therefore, the court concluded that the jury could have found that there was a duty to warn of these risks. Id.

I will continue to post on when the duty to warn arises as I continue to research warnings law. However, from my research to date, no other case summarizes when the duty arises better than Gardner.

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