Failure to Follow Warnings and Instructions

Is that Foreseeable?

In previous articles I have written, I have talked about what is reasonably foreseeable misuse and how that should be taken into account during the design of the product,¹ how to navigate the safety hierarchy,² and how to create effective warnings and instructions.³ All of these subjects merge when discussing the foreseeability of product users not following warnings and instructions.

What is Foreseeable Misuse?

At the birth of product liability, the California Supreme Court in Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963), limited the manufacturer’s liability to a product that was “unsafe for its intended use.” Section 402A of the Restatement (Second) of Torts, adopted shortly after Greenman, imposed no liability for injuries caused by consumer “mishandling,” “over-consumption,” and “excessive use.”

While considerable confusion arose over the years about what effect these limitations had on liability, the concept of “misuse” as a defense or limitation on a manufacturer’s duty became firmly entrenched in the law.

The Restatement Third, Torts: Products Liability (1998) (“Restatement 3d”), continued that precedent by confirming that a manufacturer is liable only when its product is put to reasonably foreseeable uses. If its use and the harm occurring during that use are reasonably foreseeable, then the manufacturer must design the product to eliminate or minimize the risk of the foreseeable use. In addition, the manufacturer must warn of known or reasonably foreseeable risks that remain in the product.

However, consistent with case law as it developed after 1965, the Restatement 3d also provided that a manufacturer can be liable for “foreseeable product misuse, alteration, and modification” (hereinafter “misuse”). Accordingly, a manufacturer must also design its product and provide warnings so that it is safe from foreseeable misuse.

Injury caused by misuse does not provide a separate theory of liability, per se, but instead relates to the issue of whether a product is defective and whether a causal connection exists between the defect and injury. Misuse, as a legal concept, is also relevant to the comparative fault doctrine, which can be used to reduce a manufacturer’s liability based on the plaintiff’s product misuse.

Setting aside the legal concept, though, the practical question for the manufacturer is what conduct will the courts and juries consider “misuse?” As one would suspect, the answers are all over the map. In fact, in a number of situations, similar conduct has been deemed foreseeable misuse in one court and unforeseeable misuse in another court. But there are some common themes that run through the cases that provide some guidance to manufacturers.

First, courts generally recognize that “nothing is unforeseeable” (especially in retrospect) and that the ways in which a product can be misused are “endless.” To counter absolute liability for product-caused harms, however, courts have attempted to limit the foreseeability concept to that which is “reasonably foreseeable.”

Recognizing this limitation, one court memorably stated: “Reasonably foreseeable … does not encompass the far reaches of pessimistic imagination.”⁴ While true, this limitation is not all that helpful as a guide to manufacturers because an event must occur before a jury gets to decide whether it was foreseeable, reasonably or otherwise. 

Certainly, though, foreseeable use (or misuse) is broader than “intended use.” One state statute defines “reasonably anticipated use” as any use or handling of the product that the manufacturer should reasonably expect of ordinary persons in the same or similar circumstances (see Louisiana Rev. Stat. § 2800.53). In addition, a technical standard for machine tools defines “reasonably foreseeable misuse” as unintended conduct that may result from “readily predictable human behavior” (see ANSI B11 (2008)).

In some situations, the manufacturer does something that increases the probability of unintended human behavior. For example, it may design a product in a way that increases the chance that the user will misuse or alter it because of some difficulty in using the product as originally designed. Or the product’s marketing may invite misuse by showing unintended users or intended users using it in an unintended and unsafe way. In both situations, the user and the use would arguably be considered “reasonably foreseeable.”

The difficulty is even greater in warnings cases. Is it foreseeable that a product user will ignore warnings and instructions? Of course it is. That is the reason that safety engineering principles, some case law, and the Restatement 3d all encourage manufacturers to design out a hazard or guard against it before, as a last resort, warning against it.

But assuming that the manufacturer designed or guarded its product as safely as reasonably possible, can it rely on a warning if it is foreseeable that users might ignore the warnings? Thankfully, yes, assuming that the warning was adequate, which will be discussed in more detail later. Judges and juries understand that manufacturers cannot make product users read and follow warnings. Any other answer would require manufacturers to sell products with no significant risk of harm based on their design and guarding. With most products, this is impossible to do.

The Safety Hierarchy

So, the first question is whether a warning is permissible instead of designing out the hazard or warning against it. The engineering concept is called the “safety hierarchy.”It is also a legal concept that is described as follows:

…when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks.⁵

On this hierarchy, a court in Massachusetts said the following:

If a slight change in design would prevent serious, perhaps fatal, injury, the designer may not avoid liability by simply warning of the possible injury. We think that in such a case, the burden to prevent needless injury is best placed on the designer or manufacturer rather than on the individual user of a product.⁶

So, before you can rely on a warning, the question is whether the manufacturer should instead make the design safer or whether a guard will minimize the risk better than relying on a warning or instructions that consumers can ignore. Assuming you can warn, then the question is whether the warnings and instructions are adequate.

Failure to Follow Warnings Caselaw

It is clear in the law that failure to follow warnings and instructions is a product misuse. Professor Owen said the following in his hornbook on Product Liability Law:

A user’s failure to follow a manufacturer’s warnings of danger or instructions on safe use provides a special form of misuse that ordinarily should bar recovery whenever the danger from non-compliance is evident, the non-compliance is a substantial cause of the plaintiff’s harm, and there is no simple way or apparent reason for the manufacturer to design the danger out of the product. 

And Professor Owen quotes from the Restatement (Second) of Torts, which says:

Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in a defective condition nor is it unreasonably dangerous.

In addition to the case law, a few states have laws that preclude liability for a manufacturer when the injured party ignores the warnings and instructions. Statutes in Arizona, New Jersey, North Carolina, and Indiana provide protection against such a lawsuit. For example, the law of Indiana says:

It is a defense to an action under this article … that a cause of the physical harm is a misuse of the product by the claimant or any other person not reasonably expected by the seller at the time the seller sold or otherwise conveyed the product to another party.⁷

And Indiana case law provides that misuse “is established as a matter of law when the undisputed evidence proves that plaintiff used the product in direct contravention of the product’s warnings and instructions.”

Using this law, the Indiana Court of Appeals held that the failure to follow warnings and instructions is unforeseeable product misuse and therefore the manufacturer is not subject to liability.⁸ The court held that the product involved in the accident:

[w]as used in direct contravention of its label’s prominent and explicit warnings regarding flammability and instructions regarding flame cutting an empty drum and/or exposing it to heat.

Therefore, “the defense of misuse was established as a matter of law” because the defendant “could not have reasonably expected that it would be misused in the way that it was.” 

Specifically, the court said that “the large, prominent warning label on the top of the drum informed readers that the contents of the drum were flammable and explosive and would remain so even when drum was empty unless it had been reconditioned.” The court also found that the label “specifically informed readers in no uncertain terms not to cut the drum with a flame even if empty, instructions which, if followed, would have avoided the danger posed by the drum altogether.”

In conclusion, the court held that the evidence established that the warning label gave reasonable warnings about the dangers posed by the drum and how to avoid them, but that the decedent still ignored them.

So, while all misuse is foreseeable, it is not necessarily reasonably foreseeable. Thus, many courts have held that not following warnings and instructions is not reasonably foreseeable. In that case, the manufacturer would have a defense against that lawsuit.

CPSC’s Position on Failure to Follow Warnings

Let’s see what the U.S. Consumer Product Safety Commission (CPSC) has said about not following warnings and instructions. Not surprisingly, since they are not restricted by state laws, the Restatement language, or case law, some people at the CPSC take the position that, since it is foreseeable that users will not follow warnings and instructions, if the product could have been designed more safely, then the product could be considered defective and should be recalled. The CPSC has also taken the position, on occasion, that if the product can’t be designed more safely, and warnings are not being followed, maybe the product should not continue to be sold.

For example, the CPSC recently sued Leachco, a manufacturer of an infant lounger that caused several deaths after parents violated clear warnings and instructions about safe use. The Pacific Legal Foundation (PLF) that is defending Leachco just issued a white paper discussing this case and the CPSC’s position on this subject.⁹PLF said:

Through its interpretive rules, the CPSC allows itself to consider any factors that the agency deems relevant when identifying a substantial product hazard. Most importantly here, the CPSC never identified any objective design or manufacturing defect with the product itself. Instead, using its “interpretive” rules, the agency claimed that the Podster was defective because it was “reasonably foreseeable” that parents and caregivers might ignore the Podster’s warnings and misuse it.

They also said:

The CPSC declared that consumer misuse could, by itself, render a product defective. In other words, product “defects” can include no defects at all—just the potential for or evidence of misuse, in the CPSC’s judgment. Such an approach could be applied to every product on the market.

PLF suggests that the following be done to fix this position of the CPSC:

Ultimately, Congress has the power, either by amending the Consumer Product Safety Act or through other legislation, to define terms such as “product defect” that remain statutorily undefined. Doing so could reduce vast agency discretion and establish more objective standards for determining substantial product hazards.

Warnings Adequacy

So, let’s assume that the product is designed as safely as possible and consumers are not following the clear, unambiguous warnings and instructions. Consumers usually have lots of excuses for why they did not follow the warnings. For example, the safety precautions are too hard to comply with, or they are too detailed or too general, too small, in the wrong location, unclear, or only in English, or that the design could have been made safer.

In a recent lawsuit against Tesla, the court said the following:

[Consumer’s] failure to read the warnings in the Owner’s Manual is not the end of the inquiry because “the mere existence of warnings in an instruction manual is not dispositive of the adequacy of the warnings . . . [given that a] warning may be defective not only by virtue of inadequate wording, but as a result of its location and the manner in which the warning was conveyed.” ¹⁰

The same court also said:

Still, a plaintiff’s failure to warn claim may still survive, notwithstanding the consumer’s failure to read the warning, where the very nature of the defendant’s breach is such that it causes the consumer to fail to read the warning that would have prevented the injury.

Therefore, thought needs to be given to how to provide the most effective safety communications. On-product warnings and hard copy instructions are the typical ways to provide this information. But the manufacturer needs to think about location, accessibility, and conspicuity of this information in addition to the mere adequacy of the language.

In addition, the manufacturer must think about other ways to communicate safety information that may be more likely to be read or heard. For example, here are other possible ways to communicate:

• Instructions that appear on websites of manufacturers and retailers;
• Safety videos and safety manuals on manufacturer’s websites, or that accompany the product;
• Training software that accompanies products or is online;
• Training at dealers’, manufacturers’, or retailers’ facilities;
• Warnings and instructions at the point of sale and in marketing literature;
• Safety video shown at dealer location before delivery; and
• Require customers to confirm safety messages on delivery and confirm that anyone who will use the product is trained in safety.

That way, it is less likely for a court to hold that it was the manufacturer’s conduct that caused the consumer to not see or follow the warnings and instructions.

Conclusion

So, while the law is helpful in arguing that not following warnings and instructions constitutes unforeseeable misuse, the courts and the CPSC may not be receptive to these arguments, especially when specific users, such as children, are injured.

If the product is designed as safely as possible and a number of consumers are ignoring the warnings and instructions and hurting themselves, it is hard for a manufacturer to argue that nothing needs to be done. At a minimum, they should report to the CPSC and maybe argue that the CPSC needs to issue a safety regulation that includes enhanced warnings to be publicized by the CPSC and the manufacturer.¹¹ This would hopefully prevent accidents, help in defending future product liability cases, and satisfy the CPSC’s desire to do something.

The manufacturer must be able to defend the adequacy of the design and show that it was not feasible or cost-effective to make the design safer. And then show that the warnings provided were clear, complete, accessible to the user, could easily be followed and that the accident would not have occurred if the warnings had been followed.

If this can be proven to the court and jury, there is a good chance that the manufacturer will prevail in this case. It is also possible that the CPSC will agree that while a recall is not necessary, additional safety notices should be issued that strengthen the warnings provided by the manufacturer and better educate the user on how to safely use the product.

Endnotes

1. “Foreseeability: A Critical Analysis in Minimizing Pre-sale and Post-sale Liability,” In Compliance Magazine, November 2021.
2. “Navigating the Safety Hierarchy,” In Compliance Magazine, January 2022.
3. Numerous articles in In Compliance Magazine, see https://incompliancemag.com/author/kennethross. 
4. Jamieson v. Woodward & Lothrop, 247 F.2d 23, 29 (DC 1957).
5. Restatement of Products Liability, 3^rd.
6. Uloth v. City Tank Corp., 384 N.E.2d at 1192 (1978).
7. Indiana Code section 34-20-6-4.
8. Superior Oil Company, Inc. v. Labno-Fritchley, 207 N.E.3d 456 (Ind. Ct. App. 2023).
9. PATERNALISM AND PRODUCT SAFETY: The Consumer Product Safety Commission’s Approach toward Infant Nursery Products.
10. Benavides v. Tesla, Inc., United States District Court, Southern District of Florida, June 26, 2025, Omnibus Order on Motion for Summary Judgment and Daubert Motions.
11. https://www.cpsc.gov/business–manufacturingbusiness-education/business-guidance/sling-carriers