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Exploring the Status of the Obvious Danger Doctrine in Failure-to-Warn Cases

By James H. Rotondo, Robert E. Koosa, and James E. Hennessey

Traditional tort law principles provide that product manufacturers and sellers have a duty to warn of hidden risks that pose a danger to product users. As a corollary, courts generally hold that manufacturers and sellers have no duty to warn consumers of obvious dangers inherent in the product. Consequently, most judges have left to the jury the question of whether the danger of injury from a product is obvious. Against this backdrop, a recent decision has cast doubt on the accepted notion that obviousness is necessarily a question for the jury. Specifically, the Supreme Court of Michigan held in Greene v. A.P. Products, Ltd., 717 N.W.2d 855, reh'g denied, 720 N.W.2d 748 (Mich. 2006) that, as a matter of law, hair oil posed an open and obvious danger to consumers that negated any duty to warn that the product could kill if ingested or inhaled.

This article has three purposes. First, it explores the traditional application of the obvious danger rule in failure-to-warn cases. Second, it analyzes the Greene case, where the court determined that the dangers posed by ingesting or inhaling hair oil, including the resultant death of an 11-month old child, were so obvious that there was no duty to warn consumers. Third, it places Greene in context within the current legal landscape.

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