“Where warning is given, the seller may reasonably assume that it will be read and heeded.”
–RESTATEMENT (SECOND) OF TORTS § 402A, Comment j (1965).
The on-line Catholic Encyclopedia informs me that the phrase “article of faith” is at least a thousand years old, found in the writings of St. Bernard of Clairvaux. Whatever its strict theological meaning, in common usage today it amounts roughly to a proposition that one believes without demanding ordinary evidentiary support. As John Payne’s character puts it in the 1947 version of Miracle on 34th Street, “Faith is believing when common sense tells you not to.”
A number of courts indulge in what is known as “the heeding presumption”:
[w]here a consumer, whose injury the manufacturer should have reasonably foreseen, is injured by a product sold without a required warning, a rebuttable presumption will arise that the consumer would have read any warning provided by the manufacturer, and acted so as to minimize the risks.
Shepherd v. Eli Lilly & Co., 497 Fed. Appx. 143, 145 (2d Cir. 2012) (emphasis supplied).
But is there any basis for this presumption? Is it true, in fact, that most people read, and heed, warnings? Or is this merely an article of faith?
Evidence that people ignore warnings is everywhere. There is the bridge in Durham, North Carolina, clearly marked as having eleven feet, eight inches of clearance. Yet for years, truck after truck has slammed into it, all captured on video. Examples could be multiplied almost endlessly. As the Nevada Supreme Court put it, in rejecting a heeding presumption, “it is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. [W]arnings are everywhere in the modern world and often go unread or, where read, ignored.” Rivera v. Philip Morris, 209 P.3d 271, 277 (Nev. 2009) (citations and internal quotation marks omitted; brackets original). One meta analysis of 15 warnings experiments showed “conformity with warning instructions varies remarkably. The absolute level of compliance in the presence of warnings was found to range from 0% to 100%. . . .” The authors of the article that mentioned this study concluded “It is paradoxical that though warnings are viewed as important social instruments for protecting consumers, relatively little research evaluates their behavioral effectiveness.”
Paradoxical, to say the least. When the Texas Supreme Court approved the heeding presumption, it left the door open for defendant to rebut it by showing “that the user was blind, illiterate, intoxicated at the time of the use, irresponsible or lax in judgment. . . . Technical Chemical Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972). How about letting the defendant rebut the presumption simply by showing that the user was . . . a human being?