We wrote about safety and health warnings on products in last month’s issue. There is no question that warnings on products serve an important role. If they are understandable, conspicuous, and presented in a way to reflect a potential hazard, they can provide us important information about the safety risks associated with using a product. Unfortunately, many companies would prefer to stop at a warning, and this failure to do more is often at the core of a products liability case.
Indeed, time and time again, lawyers see situations where product users are severely injured or killed when the hazard that killed them could have easily been designed out of the product altogether. Decades ago, the hazard hierarchy for product design was developed to ensure that design engineers not only worked to foresee hazards associated with using the products they create, but that they try to either eliminate or safeguard against the hazards in addition to warning about them. Under the hazard hierarchy, if the product manufacturer identifies a hazard associated with using the product, the manufacturer should:
• First, seek to eliminate the hazard entirely.
• Second, and only if it is not feasible to eliminate the hazard, to safeguard against the hazard, either by using a safer alternative or by incorporating a safety device.
• Third, and only if it is not feasible to eliminate or safeguard against the hazard, may the manufacturer rely on a warning.
• Fourth, and oftentimes in addition to the above but not in replace of the above, train the user.
• Fifth, and oftentimes in addition to the above but not in replace of the above, to use protective gear and clothing.
Naturally, the hazard progression is ordered from the most effective means to respond to a hazard to the least effective. Therefore, it is unreasonable for manufacturers to suggest that a user was warned about a hazard, and that the user should have avoided an accident associated with the hazard, when the manufacturer knew about the hazard and could have designed the product in a way that would have either eliminated the hazard altogether or safeguarded the user from harm. If you need more information on this subject, contact Parker Miller, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at Parker.Miller@beasleyallen.com.
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