§63.7 Duty to Warn – Post-Sale
The Case: Flax v. DiamlerChrysler Corp. , 272 S.W.3d 521 (Tenn. 2008).
The Basic Facts: Plaintiffs' decedent died in a motor vehicle. They filed a products liability action against the manufacturer of their vehicle, alleging that their son died because of a defective seat back in the vehicle.
The Bottom Line:
- "Tennessee courts have long held that a manufacturer may be held strictly liable for failing to warn consumers of the dangers of a particular product at the time of sale. Whitehead v. Dycho Co., 775 S.W.2d 593, 596 (Tenn. 1989); Trimble v. Irwin, 441 S.W.2d 818, 821 (Tenn. Ct. App. 1968). The General Assembly has also acknowledged that a failure to warn claim is a valid basis for a product liability action. Tenn. Code Ann. § 29-28-102(6) (2000)." 272 S.W.3d at 541.
- "[T]he vast majority of courts recognizing post-sale failure to warn claims agree that a claim arises when the manufacturer or seller becomes aware that a product is defective or unreasonably dangerous after the point of sale and fails to take reasonable steps to warn consumers who purchased the product." Id. [Citations omitted.]
- "Unlike plaintiffs in post-sale duty to warn cases, the plaintiffs in this case do not allege that DCC discovered problems with the seatbacks after the time of sale. On the contrary, the theory of the plaintiffs' case was that DCC had knowledge that the seats were defective and unreasonably dangerous as early as the 1980s. Furthermore, DCC does not deny that it had knowledge of the performance of its seats at the time of sale but argues that the seats functioned in a non-defective and reasonably safe manner. There is therefore no dispute regarding DCC's knowledge at the time of sale of the Caravan. Although the plaintiffs allege that DCC continued to receive notice that its product was dangerous after the sale, they do not allege that DCC received any new information during this period. Accordingly, this case does not present the facts necessary to allow us to consider the merits of recognizing post-sale failure to warn claims. Rather, the plaintiffs' allegation that DCC was negligent in failing to warn the plaintiffs after the sale is an attempt to impose liability a second time for what is essentially the same wrongful conduct. If a defendant negligently fails to warn at the time of sale, that defendant does not breach any new duty to the plaintiff by failing to provide a warning the day after the sale. Instead, the defendant merely remains in breach of its initial duty." Id. at 542.
- "For these reasons, we conclude that the trial court erred by adopting and applying the post-sale failure to warn claim in this case. We express no opinion, however, as to the merits of recognizing that cause of action in an appropriate case." Id.
Other Sources of Note: Irion v. Sun Lighting, Inc., No. M2002-00766-COA-R3-CV, 2004 WL 746823, at *17 (Tenn. Ct. App. Apr. 7, 2004) (post-sale duty to warn claim expressed rejected).
Recent Cases: Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454 (Tenn. Ct. App. July 20, 2012) (affirming trial court’s denial of directed verdict as to plaintiff’s failure to warn claim where plaintiff offered evidence that defendant had warned of danger of placing shoulder strap behind a child in the owner’s manual for a prior model year and there was no evidence regarding a warning with the vehicle itself).