Warning! Never Shoot a Damaged Arrow
As product liability specialists, we are constantly asked about high exposure issues and hot topics in Outdoors and Recreational Products. One of the hottest topics in today's field relates to potential issues arising out of the use of carbon and other fiber arrows. Specifically, certain claimants have alleged that the arrows shatter upon release, causing injury. Having investigated dozens of such claims for multiple clients, our experience suggests that such injuries arise nearly solely out of misuse, including the continued use of arrows that have been severely damaged through use. In nearly all cases, certain physical marks remain on the arrow remnants after such an injury that could only have resulted from damage upon the arrow shaft induced prior to the accident. We are able to demonstrate this through multiple techniques that have helped to curb the enthusiasm of claimants.
Nevertheless, many claimants maintain near ignorance over this occurrence, claiming that they either were not warned, or failed to read the provided warnings. Failure to warn remains a hot topic in these suits, and oftentimes remains as the only viable option for claims after careful inspection of the shaft. The question remains, how may an effective warning be provided on a product which has the thickness of a pencil, and oftentimes is not sold within a box.
Throughout American jurisprudence, failure to warn is a viable theory. Followed by many states, Section 402A of the Restatement (Second) of Torts holds a manufacturer strictly liable for failing to include proper warnings of known hazard or anticipated misuses. The more recent and defense friendly Restatement (Third) of Torts recognizes liability when a product contains "inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller … and the omission of the instructions or warnings renders the product not reasonably safe." Regardless of the law that applies, the fact remains that failure to warn is not only a viable theory, even when the injury arises out of a misuse of the product, but is the only real viable theory of liability. While the standards applied to the review of the warnings are different based upon the law of the jurisdiction of injury, the key point remains that a manufacturer's warning must be sufficient.
Fortunately, there are multiple ways to strengthen warnings in this situation. Proven techniques include:
- Warnings directing the user to a website, where the content can be updated and remain current. Such options have been recognized by at least one court in this context as a valid method of warning. See Cawley v. Eastman Outdoors, Inc., 2014 U.S. Dist. LEXIS 148194 (N.D. Ohio Oct. 17, 2014) ("The Court sees no material difference between the warnings that could have been contained in a written manual and the instruction, printed on the arrow, directing the user to the website.");
- Include content on the website and box that advises the user of the specific danger of shooting a damaged arrow, and the necessity of never shooting a damaged arrow;
- Include videos demonstrating the dangers and manner in which an arrow may be damaged;
- Clearly set forth each warning; clearly set forth the hazards that could result from misuse.
Any methods that have been proven in the industry to help advise the consumer and avoid injuries are the primary methods of protecting the integrity of the product, and providing an additional defense in product liability suits. As seasoned product liability defense attorneys specializing in hunting, outdoor and recreational products, we have vast experience in developing such warnings and instructions to help meet the needs of the manufacturer and protect the user. If you have any questions or inquiries about the warnings on your product, do not hesitate to contact us.
Clark Hill Mexico City Grand Opening Reception
Celebrate our new Mexico City Office with a reception and educational event.
We will toast our new office space and location with a cocktails and small bites with Mexico and US-based colleagues and friends.
SECURE Act 2.0 Has Arrived
On December 29, 2022, President Biden signed the SECURE 2.0 Act of 2022.
Join us as we discuss these changes and what they may mean for employers.
EU Data Protection Updates: Strategies for Compliance in 2023
In advance of Data Privacy Day, please join Clark Hill for an important session on EU data protection legislation.