In Georgia, a “failure to warn” claim arises when someone is injured or suffers damages due to a dangerous condition on a property or a defective product. This type of claim can arise in product liability cases where a product was sold without proper warnings about potential risks, and in premises liability cases where a property owner fails to warn visitors about known dangerous conditions on the property. In both scenarios, injured parties can seek compensation by proving that the responsible party was aware of the danger, had a duty to provide adequate warnings, and failed to do so resulting in the party’s injury. Below, we’ll explore failure to warn claims in Georgia, focusing on both premises and product liability cases, the elements of a successful claim, and recent trends in Georgia’s legal landscape.
What Is a Failure to Warn Claim?
A failure to warn claim arises when an individual is injured because they were not adequately informed of a foreseeable danger associated with a product or property. The basis for these claims is the notion that people have the right to be warned of any potential risks they may face so they can make informed choices about whether to proceed.
- Product Liability Cases: In the context of product liability, failure to warn claims are brought when a manufacturer or distributor neglects to provide adequate warnings or instructions about the risks of using their product. For example, a pharmaceutical company may be held liable if it fails to inform consumers of dangerous side effects associated with a drug.
- Premises Liability Cases: In premises liability, failure to warn claims apply to property owners who do not alert visitors to hazards on their property, such as wet floors, steep staircases, or other dangerous conditions. For instance, a grocery store may be liable if it fails to put up a wet floor sign and a customer slips and falls.
What are the Elements of a Product Liability Failure to Warn Claim in Georgia?
In Georgia, as in many other states, certain elements must be established to successfully bring a product liability failure to warn claim. These elements include:
- Duty to Warn: The defendant (product manufacturer or distributor) has had a duty to warn the plaintiff about the risk. This means they were in a position to know about the risk and were responsible for informing others about it. See, Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1995).
- Breach of Duty: The warnings provided were either nonexistent, insufficient, or unclear, leading the plaintiff to be unaware of the danger. A breach occurs by “(1) failing to adequately communicate the warning to the ultimate user or (2) failing to provide an adequate warning of the product’s potential risks.” Key Safety Sys. v. Bruner, 334 Ga. App. 717, 719 (2015).
- Causation: The lack of warning must be directly linked to the injury. “A mere possibility of such causation is not enough.” Blondell v. Courtney Station, 300 LLC, 362 Ga. App. 1, 7 (2021). In other words, the plaintiff must show that the harm could have been prevented had they been properly warned.
- Foreseeability: The defendant must have been aware or reasonably could have been aware that the risk existed and that it posed a danger to users. See, Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1995).
- Damages: Finally, the plaintiff must show that they suffered actual harm or injury as a result of the lack of warning.
Each of these elements must be met to establish liability in a failure to warn case.
Example Cases of Product Liability Failure to Warm
- Medications and Medical Devices: Numerous failure to warn cases related to pharmaceuticals are filed in Georgia every year. For instance, if a drug manufacturer fails to disclose severe side effects that could occur with their product, they could be held liable if a consumer suffers those side effects and had no prior warning. See Swinney v. Mylan Pharmaceuticals, Inc. et al.
- Industrial Machinery: In cases involving industrial equipment, failure to warn claims arise if the manufacturer does not provide an adequate warning as to the dangers presented by using the equipment. For instance, in 2016, a worker brought a failure to warn claim against the manufacturer of an industrial conveyer system alleging that it was foreseeable that a user might stand in a non-designated working area, which could result in the user becoming entangled in the conveyer system and sustaining catastrophic injuries. See Dennis v. D&F Equipment Sales, Inc.
What are the Key Elements of Premises-Based Failure to Warn Claims?
For a successful failure to warn claim in Georgia premises liability cases, the injured party must prove the following elements:
- Duty to Warn: The property owner or manager owed a duty of care to the injured party. Georgia law differentiates between invitees, licensees, and trespassers, with the highest duty of care owed to invitees (those on the property for a business purpose or mutual benefit). For invitees, property owners must exercise ordinary care to keep the property safe and warn of potential dangers. Licensees (those who enter for their own purposes) are owed a lesser duty, while trespassers are rarely owed any duty except in certain situations.
- Knowledge of the Hazard: The property owner must have known or reasonably should have known about the dangerous condition. This is often called “constructive notice,” meaning the hazard existed long enough that a reasonable property owner would have noticed and addressed it. See Moran v. Team Elite Realty, 361 Ga. App. 329 (2021). For example, a restaurant owner may be liable if a spill was left unattended long enough for a reasonable employee to have noticed and cleaned it up.
- Failure to Warn: The property owner must have failed to provide an adequate warning of the danger. This could mean not placing a warning sign near a hazard, such as failing to put up a “Wet Floor” sign when mopping. Georgia law requires a property owner to “to give a warning adequate to enable the [visitor on] the premises to avoid harm where the danger is not apparent. See Card v. Dublin Constr. Co., 337 Ga. App. 804, 807 (2016). In cases where a hazard cannot be immediately remedied, such as ongoing construction, warning signs, barriers, or caution tape may be necessary.
- Injury Caused by the Hazard: “Causation is always an essential element in slip or trip and fall cases.” Richardson v. Mapoles, 339 Ga. App. 870, 872 (2016). The injured party must show that the hazardous condition and the lack of warning directly caused their injuries. For example, if a visitor trips over a broken step that was unmarked and suffers a broken ankle, they would need to prove that the lack of warning about the damaged step was the direct cause of their injury.
Common Premises Liability Situations Involving Failure to Warn
Several common scenarios in Georgia can lead to failure to warn claims in premises liability cases:
- Slip and Fall Accidents: These are among the most frequent premises liability claims. A store or restaurant may be liable if it fails to warn customers about a wet or slippery floor, uneven surfaces, or ice on walkways.
- Unsafe Conditions in Apartment Complexes: Landlords and property managers are responsible for warning tenants and visitors about dangers in common areas, such as broken stair railings, poorly lit hallways, or uneven walkways.
- Hazardous Construction Zones: Property owners undertaking renovations or repairs must warn visitors of potential dangers, like exposed wiring or unstable flooring, that could lead to injury.
- Swimming Pool Accidents: Public pools, hotel pools, and apartment complexes with pools must have adequate signage warning about depth levels, the absence of lifeguards, or slippery surfaces to avoid injuries.
Notable Georgia Cases on Failure to Warn in Premises Liability
Several significant cases in Georgia have helped define the scope of a property owner’s duty to warn:
- Robinson v. Kroger Co. (1997): This case is one of the most influential Georgia premises liability cases. A woman slipped on water in a Kroger store, and the Georgia Supreme Court ultimately ruled that property owners have a duty to exercise ordinary care in keeping premises safe for invitees. This case clarified that property owners must be proactive in detecting and warning about hazards, even if a visitor also has a responsibility to look out for potential dangers.
- Ga. Trails & Rentals, Inc. v. Rogers (2021): In this case, the plaintiff was injured while riding his dirt bike at a track owned by Ga. Trails. The Plaintiff ran off of the side of the track and landed on an uncovered drainage culvert, which almost amputated the Plaintiff’s leg. A Georgia jury found that the property owner was liable for failing to repair the culvert and also failing to warn the Plaintiff about this danger by marking it with some sort of flag or cone.
- Sturbridge Partners, Ltd. v. Walker (1997): This case involved an apartment complex owner’s liability after a tenant was assaulted on the property. While not strictly a failure to warn case, the Georgia Supreme Court held that landlords must take reasonable steps to ensure tenants’ safety if they are aware of heightened risks, which can include warnings about potential dangers.
What are the Defenses in Premises-Based Failure to Warn Claims?
Property owners often raise certain defenses in response to failure to warn claims in Georgia premises liability cases. These include:
- Open and Obvious Danger: Property owners are generally not required to warn about dangers that are considered open and obvious to a reasonable person. For example, a large hole in the ground that is clearly visible may not require a warning sign because Georgia law presumes that the a visitor would see the hazard and appreciate the danger, thereby having equal knowledge of the potential harm. See Valdosta State Univ. v. Davis, 356 Ga. App. 397 (2020).
- Comparative Negligence: Georgia follows a modified comparative negligence rule. A visitor must also exercise care for his or her own safety. If the injured party is found partially at fault for their injuries, their recovery may be reduced by their percentage of fault. If they are 50% or more at fault, they may be barred from recovery altogether. For example, if a person is texting and not paying attention to their surroundings when they slip on an unmarked wet floor, a court may find them partially responsible for their injuries. In Georgia, a Plaintiff cannot recover if he is 50% or more at fault for his injuries. O.C.G.A. § 51-12-33(g).
- Lack of Constructive Knowledge: Property owners may also argue they were unaware of the hazardous condition and had no reasonable opportunity to discover it. For example, if a spill occurred just minutes before an accident, the owner might argue they did not have enough time to address it or put up a warning. See The Kroger Co. v. Schoenhoff, 324 Ga. App. 619 (2013).
Importance of Adequate Warnings on Properties in Georgia
Failure to warn cases underscore the importance of proactive communication from property owners and manufacturers. These cases remind us that those with knowledge of a hazard have an obligation to take steps to minimize risk to consumers, visitors, employees, and tenants by utilizing timely, visible warnings about any known dangers.
For those injured due to a failure to warn, Georgia law provides a means to seek compensation, but a thorough investigation and strong evidence are essential to proving one’s failure to uphold their duty of care. Victims need the support of qualified and experienced legal counsel on their side. The experienced personal injury attorneys at Williams Elleby Howard & Easter work hard to get victims the compensation they deserve.
Located in Kennesaw, Georgia, Williams Elleby Howard & Easter serves clients throughout the State of Georgia. If you or a loved one has suffered an injury due to a failure to warn, the attorneys at Williams, Elleby, Howard, & Easter can help you understand what possible claims you may have and work to get you the compensation you deserve. To schedule a free consultation, call 833-534-2542 today.
