Research On The Theory Of Failure To Warn In American Laws

With the improvement of our modern life, many people enjoy the benefitsbrought by different kinds of products, but at the same time may also suffer from thedamage of risks within the products. Therefore, consumers have the right to bewarned about the risks so as to decide whether to buy or use a product. Themanufacturers or the sellers must provide adequate warnings about the risks withinthe products, or they shall bear the product liability and pay for the damages. It isrecognized that American Product Liability Law is one of the best to protectconsumer’s rights around the world, and the theory of failure to warn is also worthy tobe researched. In this article, the theory of failure to warn in the American ProductLiability Law will be discussed detailedly and systematically by a research of a massof documents and cases, and also to analyze the laws about failure to warn in China,finding the shortcoming and giving possible improvement measures.This article is divided into four parts. The first part is about to introduce the basicknowledge about the theory of failure to warn, including the definition of product, thehistory of the American Product Liability Law, the definition and division of theproduct defect, the content and functions of the warnings, the definition andcharacteristic of the failure to warn and so on. The second part is to discuss about theduty to warn, subdivided into five questions as follows: Who shall have the duty toprovide warnings? Who shall been warned? What risks shall been warned? When toprovide warnings? And how to provide adequate warnings? Generally speaking, themanufacturer-sellers and the non-manufacturer sellers shall take the responsibility toprovide adequate warnings to the buyers or users of the products, about the riskswhich are not obvious to any person or not known according to the state of the art,when the products are on sale or sometimes after sale. The third part is to analyze the constitution of the warning defect liability, including the existence of failure to warn,damage of body or property, causation and the standard of liability. The standard todecide whether there is a warning defect or not is the reasonableness standard, that is,whether the warning is reasonable under the circumstances. And any damage of bodyor property caused by the failure to warn shall been compensated expect pureeconomic loss. Moreover, there must be true causation between the warning defectand the damage, including causation in fact and legal cause. However, it iscontroversial about the standard of liability which shall be applied for, although thecomplaint would sue by lots of causes of action. The last part is about theshortcomings of failure-to-warn laws in Chinese product liability laws andimprovement measures. It suggests to classify the product defects and define each ofthem, to provide the standard of failure to warn, to establish the legal system ofproduct liability of failure to warn, and to enrich the content of post-sale warningsystem.