Carl Schaerf and Tracy Weinstein Publish “New Strategies for Winning Dismissal of a Failure to Warn Claim”

A recent decision granting summary judgment for the defendant presents a compelling model for successfully defeating a failure to warn claim. Wu Jiang v. Ridge Tool Company, et. al, decided by the Honorable Rosalynn R. Mauskopf of the Eastern District of New York on March 27, 2018, is significant because it resolves the following issues, in favor of the defense, as a matter of law: (1) Adequacy of the warning; and (2) Conspicuity and intensity of the warning. Also significant was the finding, as a matter of law, that plaintiff was a knowledgeable user and that he did not require a warning to conform his conduct to safe work practice.

The case involved a 2014 accident sustained by plaintiff, Jiang, while using a Ridgid Wet/Dry Vacuum after sanding a floor. When Jiang lifted the Vacuum, the bottom detached and flames erupted from it, badly burning his arm.

The Court determined that the warning need not provide a full listing of materials that should not be vacuumed, and found the conspicuity and importance of the warnings to be sufficient as a matter of law. “Jiang contends that, despite including a warning not to use the Vacuum to pick up flammable dusts, the defendants should be held liable because they did not specifically mention polyurethane sanding dust. This argument fails to create a triable issue of fact as to adequacy.” As the Court observed:

“The defendants, having warned about the general hazard, were not required to provide a list of every single flammable substance that the Vacuum could be foreseeably used near, nor would it have been possible to do so. Attempting to create such a detailed warning could render the warning unclear, and therefore inadequate. In addition, ‘[r]equiring too many warnings trivializes and undermines the entire purpose of the rule, drowning out cautions against latent dangers of which a user might not otherwise be aware,’ and ‘would neutralize the effectiveness of warnings.’” Citations omitted.

The Wu Jiang decision is yet another example of increasing judicial antipathy to failure to warn claims. The Court of Appeals has recently held, explicitly, that it is plaintiff’s burden to prove that, had an appropriate warning been issued, plaintiff would have read and heeded that warning. Matter of New York City Asbestos Litig., 2016 N.Y. LEXIS 1762 at *51 (Court of Appeals, June 28, 2016). Wu Jiang, in a sense, goes a step further, rejecting the notion that feigned questions as to the “adequacy” of a warning must go to a jury. If the subject to be warned against is touched on meaningfully, every last specific is not required. If appropriate signal language and presentation is provided, conspicuity can be resolved as a matter of law. And, importantly, a Court may consider the warnings supplied in the manual on a motion for summary judgment as well.

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