The concept of failure to warn is common in all types of personal injury cases. It applies to product liability cases. It applies to premises liability cases.
The premise of the theory of liability is that there is in fact a duty to warn. That duty may arise by statute or regulation or simply by common law.
Failure to Warn Personal Injury
If the duty arises by statute or regulation, then the issue is whether or not the plaintiff was within the class of persons to be protected by that statute or regulation.
The defendant frequently argues that even if the warning had been given, there must be proof from the plaintiff that the plaintiff would have seen it, heeded it and then taken action. All of that involves complex issues of human factors. The plaintiff needs to decide whether that invokes the need for expert testimony.
Failure Warn Personal Injury-Presumption
If the case involves a decedent or a person who otherwise is disabled, then there is a presumption that applies. That presumption is one of due care. It applies in wrongful death cases and in cases where the plaintiff’s injury has rendered the plaintiff unable to testify. Hot Shot Express, Inc. v. Brooks, 264 Va. 126 (2002)
Requiring the plaintiff to present evidence of what the plaintiff would have done if the warning had been provided is similar to requiring a plaintiff to present evidence of what the plaintiff would have done if a smoke alarm had been present. In those cases the landlord argues that even though there is no smoke detector, there still must be proof that if there had been one that the plaintiff on that occasion would have rolled out of bed and fled the burning building.
The presumption of due care defeats that necessity at least in certain cases.
Call, or contact us for a free consult. Also for more info on failure to warn see the Wikipedia pages.
