In warning-based tort litigation, a common fact pattern that should just as often lead to summary judgment is when plaintiff did not in fact rely on the allegedly inadequate warning because s/he simply did not read the warning at all.

Authors: James M. Beck

In Sherk v. Daisy-Heddon, a Div. of Victor Comptometer Corp., 450 A.2d 615 (Pa. 1982), the Pennsylvania Supreme Court held that the plaintiff “cannot prevail” on a warning theory because any causal link between the alleged failure to warn and the ultimate injury was severed by the critical actor’s – in Sherk, the parents of a minor − failure to read the allegedly inadequate warning:

[Plaintiff] cannot prevail on the theory that if the parents of [the product user] had known of the [product’s risks], they would not have permitted [the user] to have possession of the [product] and thus be in a position to misuse it. . . . When the [product] arrived in the mail, [the mother] did not open the box or read the instructions. Instead, the box “was put away,” and [she] directed her sons that the [product] was not to be used until their father had instructed them in its use.

Id. at 619 (citations omitted) (emphasis added). Given the critical failure to read, “[o]n this record it is clear that the alleged “defect” in the warnings accompanying the [product] did not cause [plaintiff’s decedent’s] death.” Id. (citations omitted).

In typical warning-related litigation, the plaintiff product user is usually the critical actor. For instance, in Kenney v. Watts Regulator Co., 512 F. Supp.3d 565 (E.D. Pa. 2021), the plaintiff’s warning claim against a product manufacturer failed because “no one in [plaintiff’s] home knew of the [product’s] existence or had ever seen or read the instructions.” Id. at 579. It was therefore “irrelevant whether the instructions were ambiguous.” Id. “[N]o reasonable juror could find the ambiguity in the instructions could have caused the [plaintiff’s] injuries.” Id. at 580.

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