Avoiding Litigation for Product Instructions and Warnings

Abstract

The plaintiff suing for injuries arising from a product with allegedly defective instructions or warnings has the burden of proving each of the elements for every cause of action asserted, while the defendant prevails by defeating just one element for each cause of action. Technical communicators can increase their legal literacy by learning the elements that are most easily defeated and thereby avoid subjecting their product instructions and warnings to litigation. This article surveys the existing scholarship to show the need for more attention to legal terms, theory, and practice before explaining how lawyers approach litigation. The article then turns to each of the main causes of action—the functional approach of the Restatement (Third) of Torts: Products Liability, negligence, and breach of express warranty and misrepresentation—with an emphasis upon the elements that are most within the control of the technical communicator.