Illinois Supreme Court declines to adopt post-sale duty to warn

About three weeks ago, the Illinois Supreme Court issued an interesting opinion in which it declined to adopt section 10 of the Restatement (Third) of Torts: Products Liability (1998), which recognizes a duty to warn of a product-related risk after the time of sale under certain circumstances. The case is called Jablonski v. Ford Motor Co. and it is available here.

The case involved an accident in which a driver slammed into the back the Jablonskis’ Ford Town Car. As a result of the crash, a large pipe wrench in the trunk of the Town Car penetrated the trunk and punctured the back of the vehicle’s fuel tank causing the car to burst into flames. The plaintiff’s husband’s died and the plaintiff suffered severe burns and permanent disfigurement.

The plaintiffs filed a complaint arguing a number of different claims against Ford which, as the court put it, “continually evolved” during the litigation. Eventually, the plaintiffs abandoned a number of strict liability claims but continued to argue that the Town Car was negligently designed and manufactured and that Ford had a duty to warn customers of the danger of the risk of trunk contents puncturing the fuel tank, which Ford learned about some time after the plaintiffs bought the car.

As to the post-sale duty to warn issue, the court found that the jury was improperly instructed that the jury could find Ford negligent for its failure to warn because that is not the law in this jurisdiction. Even though the law recognizes a “continuing duty to warn,” that duty exists only if the risk is known at the time of the sale. When a design defect is present at the time of sale, the manufacturer has a duty to take reasonable steps to warn at least the purchaser of the risk as soon as the manufacturer learns or should have learned of the risk created by its fault. However, “a manufacturer is under no duty to issue post-sale warnings or to retrofit its products to remedy defects first discoveredafter a product has left its control.”

In sum, the court found that the lower court erred in providing a jury instruction based on a duty not recognized in Illinois at the time of trial.

Because the instruction was based on section 10 ofthe Restatement (Third) of Torts: Products Liability (1998), which recognizes a post-sale duty to warn under certain circumstances, the court then addressed whether it should recognize such a duty. It declined to do so, but left the door open to consider it again in the future:

“Although we do not foreclose the possibility that a post-sale duty to warn could be recognized in the future in Illinois, we decline the invitation to expand the duty in this case under the particular facts and circumstances presented here . . . [because] there was insufficient evidence presented to the jury with regard to the enumerated circumstances under which a reasonable person would provide a warning under section 10.”