The Abnormal Use Blog recently reported on a very interesting case out of the Southern District of Florida on the issue of whether there is a duty to provide warnings about products in languages other than English. The case is Farias v. Mr. Heater, Inc. (Westlaw cite: 2010 WL 4814660).
Here is a summary. The plaintiff purchased two heaters from a Home Depot in Miami to heat her home. Plaintiff spoke little English and could read almost no English. She could not understand any of the words on the heater's packaging or read the users' manuals although she understood words like "caution" and "danger." One night one (or both) of the heaters she had purchased started a fire in her living room. She sued the two manufacturers of the heaters and Home Depot arguing, among other things, negligent failure to warn. The court dismissed the claim, however, finding that the defendants had no duty to provide warnings in Spanish.
The Court distinguished the facts of the case from a previous case, Stanley Industries, Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992) in which the court imposed such a duty, because in Stanley, the product had been marketed specifically to a Spanish-speaking population. The Court also took into account the fact that the plaintiff had failed to investigate the proper use of the heaters, despite her understanding of the word "caution" in the instructions. The Court found that "it would be improper to find such clear warnings inadequate because Plaintiff here was not well-versed in English and did not investigate the danger to which she had been alerted in the use of the Heaters."
I have mixed feelings about this case, so let's talk about different issues one by one. First, it is clear that if a manufacturer markets a product specifically or directly to a target audience of non English speakers there should be a duty to warn in the language of the intended audience. There appears to be little debate about this, and the precedent case mentioned above so holds.
The more difficult question is whether there ought to be a duty to provide warnings in cases in which the product is not marketed in this way. As expressed by the Abnormal Use Blog, "if manufacturers are required in the future to provide bilingual instructions and warnings, what languages are included? Spanish might be the obvious first step, but where would the line be drawn? If warnings are posted in Spanish and French, for instance, but the injured party is Korean, will the manufacturer be found negligent in a failure to warn case? Courts and legislatures need to be wary of imposing overly burdensome requirements on manufacturers in this area."
I don't disagree with this, but I think that the issue goes back to the marketing of the product. If we are ready to say that we should recognize a duty if the product is marketed to a specific audience, is it that much of a leap to say we should recognize a duty if the product is marketed in a particular market. By this I mean, there are specific areas in this country that are known to be centers of foreign populations. And if there is a great example of this it is Miami!
Let's face it, Miami is a bilingual city. A portion of the city is known as "Little Havana." Everyone knows this. So is it really that burdensome to suggest that labeling should be different for that market?
On the one hand, I think courts can make a distinction based on the market and the market strategy. I would not have had a problem if the court had decided there is a duty to provide warnings in Spanish in Miami. But, on the other hand, I understand the difficulty of making the necessary distinctions among different markets because there is definitely a risk of a slippery slope. Once you say there is a duty because of the "market" itself, you have to figure out how to determine at what point a certain market requires warnings in different languages. Would it be based on population, size of the market, location, tradition, etc? Would we limit it to city limits or subdivide the city (and the duty) based on neighborhoods? At some point, the notion of using "the market" as the way to determine the duty would simply not be practical. (Think of New York, for example. What would be the duty there?)
There is some literature on this subject out there, but I, unfortunately, have not had time to review it recently. (Off the top of my head, I know of one article by my friend Glenda Labaddie Jackson published in 11 Harvard Latino Law Review 85 (2008)). I am sure the issue will continue to arise as the US continues to become more multi-cultural.
Lastly, I have to comment on a different aspect of the case. The Court does appear to make a big mistake in its discussion of the plaintiff's conduct. The Court is wrong in suggesting that the fact the plaintiff was negligent herself in not attempting to get a better understanding of the product is relevant to the issue. It may be relevant to the question of liability but not to the question of duty. These are two different issues. The issues related to the duty to warn or to the adequacy of the warning depends on the warning itself.
UPDATE: The Abnormal Use Blog has posted a follow-up to my comment here.