Jump to Navigation

Duty to Warn in Kansas Products Liability Cases:

Kansas City and Johnson County Product Liability Attorneys

The post-sale duty to warn is really a negligence claim despite case law suggesting that it is a strict liability claim.  In Patton v. Hutchinson Wil-Rich Manufacturing Co. 253 Kan. 741 (1993) the Kansas Supreme Court stated that the “post-sale duty to warn ultimate consumers who purchased the product who can be readily identified or traced when a defect, which originated at the point of sale, is discovered to present a life-threatening hazard.” They further stated that the post-sale duty to warn should be a balancing test between risk and burden considerations and that the duty to warn either consumers or distributors was also subject to the balancing factor. Id. At 759.

Defendants are allowed to present evidence of proper warnings or instructions or compliance with regulations to show that product was not defective.  K.S.A. 60-3305 is the primary Kansas law on the duty to warn and states:
In any product liability claim any duty on the part of the manufacturer or seller of the product to warn or protect against a danger or hazard which could or did arise in the use or misuse of such product, and any duty to have properly instructed in the use of such product shall not extend:
(a) To warnings, protecting against or instructing with regard to those safeguards, precautions and actions which a reasonable user or consumer of the product, with the training, experience, education and any special knowledge the user or consumer did, should or was required to possess, could and should have taken for such user or consumer or others, under all the facts and circumstances;
(b)   to situations where the safeguards, precautions and actions would or should have been taken by a reasonable user or consumer of the product similarly situated exercising reasonable care, caution and procedure; or
(c)   to warnings, protecting against or instructing with regard to dangers, hazards or risks which are patent, open or obvious and which should have been realized by a reasonable user or consumer of the product.
K.S.A. 60-3305.

The Supreme Court in Delaney v. Deere and Co., 268 Kan. 769, 999 P.2d 930 (2000), held that K.S.A. 60-3305(c) only applies to claims based upon an insufficient warning. It does not limit recovery for a claim based upon a defective design or dangerous product. The Delaney court went on to say that the duty to warn generally encompasses two separate duties: the duty to provide a warning to dangers inherent in use and the duty to provide adequate instructions for safe use.

The jury instruction relevant to the duty to warn is P.I.K. 128.05:
A (manufacturer) (seller) of a product which (he) (she) (it) knows, or by the exercise of ordinary care should know, is potentially dangerous to users thereof, has a duty to give adequate warnings of such danger where injury to a user thereof can be reasonably anticipated if an adequate warning is not given. The duty to warn includes a duty to provide a warning to dangers inherent in use and the duty to provide adequate instructions for safe use. Failure to so warn constitutes negligence.
[If the warning on the product was, at the time of manufacture, incompliance with (legislative regulatory standards) (administrative regulatory safety standards) relating to warnings or instructions, the product is not defective by reason of the warning or instructions, unless the plaintiff proves that a reasonably prudent (manufacturer) (seller) could and would have taken additional precautions.]
[If the warning on the product was not, at the time of manufacture, in compliance with (legislative regulatory standards) (administrative regulatory safety standards) relating to warnings or instructions, the product is defective unless the (manufacturer) (seller) proves that its failure to comply was a
reasonably prudent course of conduct under the circumstances.]
[If the warning on the product was, at the time of manufacture, in compliance with a mandatory government contract specification relating to warnings or instructions, then the product is not defective for that reason.]
[If the warning on the product was not, at the time of manufacture, in compliance with a mandatory government contract specification relating to warnings or instructions, the product is defective for that reason.]
[You are further instructed that any duty to warn against a danger or hazard does not extend:
(1) To warnings, protecting against or instructing with
regard to those safeguards, precautions, and actions which a reasonable user or consumer of the product, with the training, experience, education, and with any special knowledge the user or consumer did, should or was required to possess, could and should have taken for such user or consumer or others, under all the facts and circumstances;
(2) To situations where the safeguards, precautions, and
actions would or should have been taken by a reasonable user or consumer of the product similarly situated exercising reasonable
care, caution, and procedure;
(3) To warnings, protecting against or instructing with
regard to dangers, hazards, or risks which are patent, open, or
obvious and which should have been realized by a reasonable
user or consumer of the product].

One potentially harmful case states that there is no duty under K.S.A. 60-3305 for a manufacturer or seller of a product to warn members of a profession against dangers generally known to that trade or profession. Mays v. Ciba-Geigy Corp., 233 Kan. 38, 60, 661 P.2d 348 (1983); Kearney v. Kansas Public Service Co., 233 Kan. 492, 496-497, 665 P.2d 757 (1983).   Kansas law also allows the defendant to compare the fault of Dale Bishop and his employers.  Kerns v. G.A.C., Inc., 255 Kan. 264, 875 P.2d 949 (1994), states that dangers or hazards that are open and obvious and which should be realized by a reasonable user do not impose a duty to warn. Note that Kerns did not have a claim for a defective or dangerous product. 

 

                        Remember, the specifics of your case are unique, call The Law Offices of Jeremiah L. Johnson, LLC, today at 913-764-5010 to discuss your case.                                          Inital consultations are free and you are under no obligation to retain our counsel. 

 

 

913-764-5010 Talk to an Attorney Today

NOTE: Labels in bold are required.

Name:
Email:
Comments: