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According to Professors Henderson and Twerksi, the Reporters for the Restatement (Third) of Torts: Products Liability, “… post-sale warnings are probably the most expansive area in the law of products liability.” The authors go on to say that “[I]f you want to see people turn ashen white quickly, we recommend that you gather representatives from industry in a room and then flash the words 'post-sale warnings' on a screen.” They further describe post-sale warnings as “timeless” and a “monster duty.”
With this in mind, Henderson and Twerski and the members of the American Law Institute attempted to structure the analysis of this duty and to make it clear under what circumstances this duty would apply.
The Restatement has three sections devoted to post-sale warnings. Section 10 provides four factors the plaintiff must establish to recover against a defendant for failing to issue post-sale warnings. This section makes it clear that, in certain circumstances, this post-sale duty may exist whether or not the product is defective at the time of sale. Therefore, such duty might arise in the case of a product that was not defective at the time of sale but, due to improvements in technology, was, in comparison to products introduced into commerce at a later date, unreasonably dangerous.
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