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I.
INTRODUCTION
Warnings are like excuses -every product manufactured today has at least one. Traditionally, a seller had a duty to warn only at the time of sale. Yet, the American Law Institute issued the Restatement (Third) of Torts: Products Liability, and in section 10 thereof recognized a post-sale duty to warn under certain circumstances.
While section 10 potentially expands a seller's liability, it is the seller's reaction to section 10 that may actually trigger a post-sale duty to warn. Through its own actions, a seller may inadvertently assume a post-sale duty to warn when none previously existed or otherwise may be imposed. This article explores the elements of section 10 and other factors that may create a post-sale duty to warn upon a seller.
BACKGROUND
A. Duty to Warn
Under the prior Restatement (Second), sellers could be held liable under either strict liability' or negligence principles2 for harm caused by "unreasonably dangerous" products. For liability to exist the product must be "unreasonably dangerous"3 or the seller must know or have reason to know that the product is likely to be dangerous4 at the time it is originally sold.' A seller of a product that is not "unreasonably dangerous" at the time of sale generally has no liability.
Liability may arise even if the seller has exercised "all possible care in the preparation and sale of [its] product."' The justification for imposing strict liability upon a seller is that the seller:
by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them .... 7
In fact, a product may be "unreasonably dangerous" because it lacked a warning.8 Conversely, an appropriate warning at the time of sale regarding the "unreasonably dangerous" nature of the product eliminates the "unreasonably dangerous" characterization of the product, thereby discharging a seller from...