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From Products Liability Law Daily, January 3, 2017

Jury instruction on post-marketing duty to warn not warranted in police cruiser defect case

By David Yucht, J.D.

In an action brought against Ford by a police officer who sustained severe burns when his police cruiser was rear-ended, the trial court properly refused to provide a jury instruction on an automobile manufacturer’s post-market duty to warn, the Ohio Supreme Court ruled in reversing an appellate court. The appellate court improperly relied upon evidence of risk that was known to Ford prior to the purchase of the vehicle and the officer did not present evidence of the likelihood of the risk of fire under the circumstances (Linert v. Foutz, December 29, 2016, O’Connor, M.).

A police officer was injured when the police cruiser he was driving was rear-ended by a large passenger vehicle travelling at approximately 100 mph. The impact caused the police cruiser’s fuel sender unit to dislodge and rupture the cruiser’s fuel tank. Fuel spilled, resulting in fire and causing severe burns to the officer. Newer models of the subject cruiser were designed with improvements to the fuel delivery system to reduce the risk of fires. Among other claims, the police officer sued the automobile manufacturer stating products liability claims for design defect, manufacturing defect, and failure to warn. A jury trial was conducted, during which the trial court denied the police officer’s request for a jury charge concerning the post-market duty to warn under Ohio statutory law. The jury returned a verdict in favor of the automobile manufacturer on all claims. The officer appealed, asserting 11 assignments of error. The appellate court rejected most of those claims but agreed that the trial court had erred by not instructing the jury on the manufacturer’s duty to give consumers a post-marketing warning. The manufacturer appealed to the Ohio Supreme Court.

Post-marketing knowledge. In a post-market duty to warn action, the fact-finder’s focus must be on any evidence of a risk associated with the product of which the manufacturer acquires knowledge afterthe sale of the product. In this case, the risk of fire from fuel-containment systems was known to the manufacturer before the sale of the subject police car. That evidence was relevant to the officer’s claim for failure to warn at the time of sale—a claim that the jury rejected—but it was not relevant to a post-market duty to warn under Ohio law.

Likelihood of risk. A "risk" that triggers a post-marketing duty to warn under Ohio law is not merely any "known danger," but must be a risk about which a reasonable manufacturer would warn in light of the likelihood and likely seriousness of harm. A product manufacturer’s implementation of a post-marketing product improvement does not trigger a post-marketing duty to warn. A determination of whether a manufacturer acted reasonably in failing to give a post-market warning to consumers must include consideration of the likelihood of the risk of harm to consumers as well as the possible severity of this harm. In this case, the police officer did not demonstrate the likelihood of the risk of fire from a rear-end collision in his type of police cruiser. His evidence of six serious police car fires did not sufficiently address the likelihood of danger because there was no evidence of how many of these cars were on the road. Thus, the trial court properly refused to instruct on a post-marketing duty to warn in this case because the jury would not have had an adequate basis to find that this duty had been breached.

The case is No. 2014-1940.

Attorneys: Robert W. Schmieder II (SL Chapman, LLC) for Ross Linert. Elizabeth B. Wright (Thompson Hine, LLP) for Adrien Foutz.

MainStory: TopStory WarningsNews MotorVehiclesNews OhioNews

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