Instructions and Warnings at Sale and Post-Sale

Windows and doors are products subject to product-liability laws in our United States. A manufacturer, and sometimes reseller, can incur liability should the product be found “defective.” Understandably, this qualification arises from a defect in design or materials that causes damage. Less well understood is the fact that a product can be established as defective, even if the design is reasonable and the materials are sound, because there are inadequate instructions as to use or if there is a failure to warn of a risk that is “hidden.” Here, a risk would be hidden if a claimant can convince a judge and jury that the risk was not readily apparent to a reasonable user.

So, it is important to take good measure, before sale of the product, of the ways that unwitting use (during handling, installation, and in-service) may result in damage to person or property. Most often, solid decisions on workable instructions and clear warnings, made available at or before sale, provide the protection required to manage this “defect.”

What of the situation in which manufacturer only learns post-sale that a defect in design, materials, or instruction/warning exists? Here, the legal answer is mixed among the states, so prudence requires that the situation be treated as one with a Duty to Speak after the sale. [I am not addressing the very important regulatory requirements imposed by the like of the Consumer Products Safety Commission.]

Should the potential for later-discovered significant product defect arise do not hesitate, you have two goals: 1) act reasonably and promptly; and 2) document a record of what you have done. Within the investigation evaluate all sources of available information within and outside of your company. Determine frequency and severity of instances of the problem. For example, even low frequency can require action if serious injury may be involved. If warranted, begin considering what might be an effective remedy, including a communication strategy. You do not want anyone hurt and later may well be answering difficult questions.