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Practice Tip: Recovering Under the Theory of Failure to Issue Post-Sale Warnings

By Lawrence Goldhirsch

Although a product may be reasonably safe when it is sold, a manufacturer that later learns of risks revealed by user operation may be held responsible for failure to issue post-sale warnings. The justification for a post-sale duty to warn arises from a manufacturer's unique and superior position to follow the use and adaptation of its products by consumers. The manufacturer is best placed to learn about post-sale defects or dangers discovered in the use of its products as compared with purchasers and users.

Although a manufacturer is generally not responsible for injuries caused by substantial alterations by a third party that renders the product unsafe, even where a substantial modification has been made, an injured plaintiff may claim a post-sale failure to warn. See Liriano v. Hobart, 92 NY2d 232, 677 NYS2d 764 (1998), 170 F3d 264 (2d Cir. 1999).

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