By Dan Jaffe on March 9, 2017
Many courts have stated criteria for determining the adequacy of product safety warnings. The Tennessee Supreme Court established a particularly useful 5-part test in Pittman v Upjohn Co., 890 S.W.2d 425, 429 (Tenn. 1994). As recently re-stated by the Court of Appeals for the Sixth Circuit it is as follows:
The Tennessee Supreme Court has identified an inclusive list of criteria for identifying an adequate warning: 1) the warning must adequately indicate the scope of the danger; 2) the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the product; 3) the physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger; 4) a simple directive warning may be inadequate when it fails to indicate the consequences that might result from a failure to follow it; and 5) the means to convey the warning must be adequate.
Bradley v Ameristep, Inc., 800 F.3d 205, 211-212 (6th Cir. 2015).
Under this test, an adequate warning conveys both what will happen as a matter of fact, and, with an appropriate degree of intensity, the ultimate harm which could result if the warning is not followed.
A practical application of this test is exemplified by Remington Arms Company’s recent “Product safety Warning and Recall Notice” for Remington Model 700 and Model Seven rifles. In its “DESCRIPTION OF THE HAZARD” the warning states that the identified rifle models with XMP triggers “…could, under certain circumstances, unintentionally discharge.” (emphasis in original). Additionally, it states that some XMP triggers may have “excess bonding agent” used in the assembly process. This language addresses element 1) of the Pittman test, the scope of the danger.
In its “REMEDY/ACTION TO BE TAKEN:” the warning states, “STOP USING YOUR RIFLE. Any unintended discharge has the potential to cause injury or death.” (emphasis in original). This language addresses Pittman element 2), in that it “reasonably communicate[s] the extent or seriousness of the harm that could result…”
In “HOW TO DETERMINE IF YOUR RIFLE IS SUBJECT TO THE RECALL” the warning uses photographs and detailed instructions to enable consumers to determine if their particular rifles are subject to the recall. This addresses Pittman element 3) since it provides physical aspects of the warning in the form of graphics and clear detailed language in outline form, plus the above referenced language in all capital letters and in bold type which is likely to alert a reasonably prudent person to the danger.
The specific, detailed and illustrated Remington product warning is much more than a mere “simple directive warning,” addressing Pittman element 4).
Finally, Remington is publicizing its warning on its website and through advertisements and notices in various electronic and print media that focus on firearms and shooting sports. This multi-mode publication addresses element 5) of the Pittman test.
If challenged, the adequacy of Remington’s warning will ultimately be determined by the courts which are called upon charged to decide the issue. However, Remington has made a creditable effort to issue a clear, detailed and illustrated warning which factually conveys the nature of the hazard, and emphatically conveys the ultimate harm which could result if the warning and recall notice are not followed.