The Restatement (Third) of Torts: Products Liability was approved by the American Law Institute in 1997, and published in 1998. Among the topics addressed by the new Restatement is a seller's or distributor's duty and potential liability for defects in a product which did not exist or were not known at the time of sale or distribution. The new Restatement acknowledges that judicial recognition of post-sale duty to warn has been a relatively recent phenomenon, and attempts to suggest a model approach to the imposition of such a duty. Only time will tell if the Restatement succeeds in its mission. To date, courts - including those in Illinois - have been slow in the uptake in imposing these duties.
This article will discuss the current state of Illinois law on the issue of duty to warn, compare it to the Restatement model, and suggest trends that may be recognized through examining the decisions of Illinois courts and those of other jurisdictions.
I. POST-SALE DUTY TO WARN
The Third Restatement of Torts Section 10, suggests the imposition of liability on product sellers and distributors for the post-sale failure to warn of a risk of harm associated with a product if a reasonable person in the seller's position would have provided such a warning. Section 10 sets forth four requirements (discussed below) that must be satisfied for a court to determine that a reasonable person would have provided such a warning.
B. CURRENT ILLINOIS LAW
Under Illinois common law, a manufacturer has a duty to warn foreseeable users of a product of a particular hazard if there is unequal knowledge, actual or constructive, and the manufacturer knows or should know that injury could occur if no warning is given. Carrizales v. Rheem Manufacturing Co., 226 Ill.App.3d 20, 25, 589 N.E.2d 569, 573, 168 Ill.Dec. 169, 173 (Ill.App. 1 Dist. 1992). A manufacturer has no duty to warn of a danger that is obvious and generally appreciated since the purpose of a warning is to inform a party of an unknown danger so that he may protect himself from such danger. Id.
However, there is no authority in Illinois that extends the duty to warn beyond the time that the product leaves the manufacturer's control unless the manufacturer knew or should have known that the product was defective at that time. Collins v. Hyster Co., 174 Ill.App.3d 972, 977 (Ill.App. 3d Dist. 1988). This general rule applies to actions based on both negligence and strict liability. Kempes v. Dunlop Tire and Rubber Corp., 192 Ill.App.3d 209, 218 (Ill.App. 1 Dist. 1989).
An exception to the well-established law in Illinois that manufacturers do not have a continuing duty to warn is found in Seegers Grain Co. v. U.S. Steel Corp., 218 Ill.App.3d 357, 374 (Ill.App. 1 Dist. 1991). (But, see Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir. 1996).) In Seegers, the court found that a steel plate manufacturer and builder of a storage tank had a duty to warn a purchaser that the storage tank could fracture because the defendant manufacturer knew or should have known of the fracture of other such storage tanks before the purchaser's tank fractured. Whether Seegers is the beginning of a new trend or merely an anomaly cannot yet be determined. See Birchler, 88 F.3d at 521.
Generally, it is considered unfair to impose a continuing duty to warn against a hazard that was discovered after the time a product left a manufacturer's control. Collins, 174 Ill.App.3d at 977. Illinois law does not contemplate placing a duty on manufacturers to warn all foreseeable product users of a hazard because of a better design or construction that was unavailable at the time the product left the manufacturer's control. Id.
In addition, courts have been unwilling to place a continuing duty to warn on manufacturers of mass-produced items because state-of-the-art technology for such common items constantly evolves to reduce hazards, and a continuing duty to warn may discourage such manufacturers from developing safer products. Carrizales, 226 Ill.App.3d at 35. Moreover, to impose upon a manufacturer a duty to warn of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer the virtual insurer of its product, a circumstance that has been rejected by the Illinois Supreme Court. Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37 (Ill. 1980).
In sum, Illinois law does not impose on manufacturers a duty to issue a post-sale warning of a danger discovered after a product has left its control when such danger was not known, nor should it have been known, at the time the product left the manufacturer's control. Modelski v. Navistar International Transportation Corp., 302 Ill.App.3d 879, 888, 707 N.E.2d 239, 246, 236 Ill.Dec. 394, 401 (Ill.App. 1 Dist. 1999).
C. RESTATEMENT (THIRD) OF TORTS § 10
Section 10 of the Restatement (Third) of Torts, governing the liability of commercial product sellers and distributors for harm caused by a post-sale failure to warn, states that one engaged in the business of selling or otherwise distributing products may be liable for harm to persons or property caused by the seller's failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide such a warning. Sub-section (b) states that a reasonable person in the seller's position would provide a warning after the time of sale if:
(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and
(2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the burden of providing a warning.
Trends in Illinois
Illinois courts' holdings that a manufacturer has no duty to issue a post-sale warning of defects first discovered after a product has left its control are by no means without extra-jurisdictional authority to the contrary. Modelski, 302 Ill.App.3d at 890. Although recognizing such decisions to the contrary, the holding in Modelski comports with established Illinois precedent. Id.
It does not appear that there currently is a trend in Illinois common law toward adopting the position set forth in Section 10 of the Restatement (Third) of Torts. While Illinois courts have acknowledged the post-sale warning duty imposed in other jurisdictions, the courts have refused to depart from established precedent, which holds that there is no post-sale duty to warn. Thus, it appears that if any post-sale duty is to be imposed on manufacturers, such a duty will likely have to be imposed by the Illinois legislature.
In addition, as seen in the next section, most jurisdictions that have imposed a post-sale duty to warn have done so in the context of industrial products having a high probability of danger, such as farm equipment, manufacturing equipment, and aircraft. See, e.g., Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311, 1318 (7th Cir. 1983). Thus, if Illinois did impose any post-sale duty to warn, it would likely be confined to industrial products and exclude mass-produced products commonly found in households, given the severe burden of issuing a post-sale warning concerning mass-produced products.
Trends in other jurisdictions
Some jurisdictions concur with the Illinois courts in holding that manufacturers only have a post-sale duty to warn of product defects that existed at the time of manufacture and sale. For instance, in Pennsylvania, a manufacturer does not have a post-sale duty to warn unless the product was defective at the time of sale. Lynch v. McStome and Lincoln Plaza Assoc., 378 Pa.Super. 430, 441 (Pa. Super. Ct. 1988).
Similarly, Minnesota law imposes a post-sale duty to warn of dangers associated with using a product when the following special circumstances are present: knowledge of a problem with the product, continued sale or advertising of the product, and a pre-existing duty to warn of dangers associated with the product. Kociemba v. G.D. Searle & Co., 707 F.Supp. 1517, 1528 (D.Minn. 1989) (manufacturer of intrauterine device).
Likewise, under Michigan law, if a defect exists at the point of manufacture and the manufacturer either knew or should have known of the danger while the product was still in its control, the manufacturer has a duty to warn upon learning of a defect of which it was not aware until after manufacture or sale. Gregory v. Cincinnati Incorp., 450 Mich. 1, 11, 14 (Mich. 1995). In other words, a manufacturer has a post-manufacture duty to warn if the defect existed at the time of manufacture but for some reason it was undiscoverable by both manufacturer and consumer at that time. Id. at 18-19. If a manufacturer has a duty to warn of a known danger at the time of sale, then there exists a post-sale duty to warn of latent defects when the manufacturer discovers the problem shortly after the product has been put on the market. Comstock v. General Motors Corp., 358 Mich. 163, 177-78 (Mich. 1959).
Although the Illinois courts have not expressly rejected the position set forth in Section 10 of the Restatement, there are some jurisdictions that have done so. For instance, the Supreme Court of Pennsylvania expressly rejected Section 10 because it eliminates the requirement that a defect existed at the time of sale and because it injects the negligence "reasonable person" standard into strict liability. DeSantis v. Frick Co., 745 A.2d 624, 631 (Pa. Super. Ct 1999) (manufacturer of industrial freezer).
On the other hand, a few jurisdictions have adopted the view of Section 10 of the Restatement. The Supreme Court of Iowa expressly adopted Section 10, including the four factors to be considered in determining the reasonableness of providing a post-sale warning. Lovick v. Wil-Rich, 588 N.W.2d 688, 695-96 (Iowa 1999) (manufacturer of farming cultivator). Thus, under Iowa law, manufacturers have a post-sale duty to warn when it is reasonable to do so. Id. at 696. However, an Iowa court may determine that, as a matter of law, no duty existed. Id.
Other jurisdictions, while not expressly adopting Section 10, have held that manufacturers have a post-sale duty to warn of product dangers. Under Wisconsin law, a manufacturer's duty to warn customers or users of defective conditions which may render its products unreasonably dangerous, as well as of any risks of injury that may be associated with its products, extends to dangers that arise after marketing. Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311, 1318 (7th Cir. 1983).
Similarly, Kansas imposes upon manufacturers a post-sale duty to warn product purchasers who can be readily identified or traced when a defect, which originated at the time of manufacture and which was unforeseeable at the time of sale, is discovered to present a life-threatening hazard. Patton v. Hutchinson Wil-Rich Manufacturing Co., 253 Kan. 741,759, 861 P.2d 1299, 1313 (Kan. 1993). The nature of the post-sale duty to warn, as well as where and to whom it should be given, is a case-specific determination. Id. at 761-62, 1314-15. The Kansas supreme court also set forth a list of eight factors to be considered in determining the reasonableness of a warning. Id.
Moreover, many jurisdictions hold that manufacturers have a post-sale duty to warn of safer designs. According to Texas law, under a negligence theory, a manufacturer has a post-sale duty to warn regarding products for which a safer design has been developed, provided that the manufacturer has regained some measure of control over the product that would reasonably permit it to take such measures. Syrie v. Knoll International, 748 F.2d 304, 311 (5th Cir. 1984) (court refused to find such a duty regarding chair manufacturer because manufacturer did not regain control of the product).
However, some jurisdictions have taken the opposite position regarding a duty to warn of safer designs. For instance, Pennsylvania law provides that, generally,
a manufacturer has no post-sale duty to warn product users of a safer design. Lynch, 378 Pa.Super. at 440. Thus, if a product is not defective at time of sale, then a manufacturer has no duty to notify users of safety advancements. Id. at 441 (escalator manufacturer). Likewise, under Michigan law, a manufacturer has no duty to notify of safety advances that become available post-manufacture if a defect did not exist at time of manufacturer. Zettle v. Handy Manufacturing Co., 837 F.Supp. 222, 224 (E.D.Mich. 1992).
Finally, many jurisdictions that have imposed a post-sale duty to warn have done so in the limited context of industrial products having a high probability of danger, such as farm equipment, manufacturing equipment, and aircraft. For example, the Wisconsin post-sale duty to warn is limited to manufacturers of industrial products. Gracyalny, 723 F.2d 1311, 1318-19 (7th Cir. 1983). Thus, there is no duty to warn of safety improvements imposed on manufacturers of mass-produced products under Wisconsin law. Id. Such holdings seem reasonable in light of the unfair burden manufacturers of mass-produced products would face if they were forced to warn the purchasers and users of their products. Mass-produced, mass-marketed commercial products are virtually untraceable as compared to industrial products, which usually have a serial number, are sold to a smaller, more identifiable market, and, thus, are readily traceable.
As stated by the Seventh Circuit in the Birchler decision, whether Seegers is the beginning of a new trend or merely an anomaly is unclear. Birchler, 88 F.3d at 521. However, practitioners should be alert to the fact that the Restatement has given validation to the decisions in other jurisdictions imposing a post-sale duty to warn, and sometimes a broad one. It is likely that the plaintiffs' bar will refer to the Restatement in urging a widening of the duties imposed on product sellers and distributors in Illinois. The potential exists for the creation in Illinois of duties that would be quite unfair to manufacturers and sellers. Such duties would require manufacturers and sellers to see the future, and expose them to liability for potentially endless periods of time.
James P Marsh, Associate Editor, is a partner in the Downers Grove firm of Momkus Ozog & McCluskey, LLC. He concentrates his practice in the areas of product liability defense, professional liability defense and general casualty defense. Mr. Marsh received his B.S. in 1983 from Eastern Illinois University and his J.D. from The John Marshall Law School in 1988.
Alison J. Lezak is a third-year law student at Loyola University Chicago School of Law, and is employed as a research clerk with Momkus Ozog & McCluskey, LLC. Alison received her undergraduate degree in English, cum laude, from Loyola University Chicago in 1998.