Inadequate Product Warnings and Causation

The market failure that provides an economic justification for imposing tort liability on product sellers for design and manufacturing defects also justifies tort liability for inadequate warnings. In general, the liability standards proposed in the most recent draft of the Restatement (Third) of Torts: Products Liability have the potential to remedy this market failure, although this purpose is not furthered by the Draft’s requirement that plaintiffs prove that an adequate warning would have prevented the injury. Unless courts presume causation (as most currently do), sellers will not have sufficient incentive to warn about unavoidable product risks. Moreover, there is no persuasive reason to curtail liability for inadequate warnings by adopting a more stringent causation standard, because juries can resolve competently the issues involved in a determination of whether a warning is inadequate. The presumption of causation therefore should be retained by the Restatement (Third).