Exploring the Status of the Obvious Danger Doctrine in Failure-to-Warn Cases

The obvious danger doctrine emerged, as have many principles of tort law, from a set of memorable facts. Clemence Lorenzo was returning one night to her rented home in Boston. The sidewalk in front of Lorenzo's home was level with the street and contained a 'coal hole' about two feet in from the edge of the street line and 30 inches from her neighbor's porch. Such holes, which were actually hatches over underground coal bunkers, were used in the Northeast to store residents' heating supplies during the winter. The sidewalk in front of Lorenzo's home was covered with recently delivered coal that was being shoveled off a delivery truck and poured into the coal hole. As Lorenzo approached her home, she stepped up onto her neighbor's porch to avoid the coal, but when stepping back toward the sidewalk, fell into the coal hole, of which she had previously been unaware. Lorenzo sued Jacob Wirth, the owner of the home, claiming that he had been negligent by opening a coal hole without warning pedestrians of the dangers that the hole presented. According to Lorenzo, she had never seen coal put through a coal hole before. Lorenzo v. Wirth, 49 N.E. 1010, 1010-11 (Mass. 1898).

Justice Oliver Wendell Holmes, Jr. concluded that Wirth had no duty to warn of the danger because the coal hole was an obvious jeopardy of which most people in the area were aware. Holmes opined that '[i]n simple cases of this sort, courts have felt able to determine what, in every case, however complex, defendants are bound at their peril to know, and are presumed to know, namely, whether the given situation is one or the other side of the line.' Holmes concluded, a 'heap of coal on a sidewalk in Boston is an indication, according to common experience, that there very possibly may be a coal hole to receive it.' To that end, 'we are of the opinion that as against a person coming from where the plaintiff came from … the defendant cannot be said to have been wanting in due care.' Thus, the obvious danger doctrine was born.

Justice Holmes, however, did not persuade every jurist on the panel in Lorenzo that the danger presented by the coal hole was patently obvious. To Justice Marcus Perrin Knowlton, the danger was significantly less apparent. Knowlton concluded that this situation presented facts where reasonable minds could differ as to the defendant's duty of care. 'I think that the jury well might have found that a coal hole on a public sidewalk where a throng of persons was passing in each direction was left open on a dark evening, with coal scattered about it from the curbstone to the side of the defendant's building …' presented a danger against which the defendant had a duty to protect. Justice Knowlton reasoned that '[w]hat kind of conduct is required under complex conditions, to reach the usual standard of due care, namely, the ordinary care of persons of common prudence, is a question of fact, to be determined according to the observation and experience of common men.' While Holmes' position won the day in 1898, Knowlton's view has become the widely accepted norm in tort law. Consequently, in the vast gray area where reasonable minds could differ as to the obviousness of the danger, most judges have permitted the jury to resolve the issue.

The majority of courts have found that the alleged obviousness of a danger is an issue for the jury to resolve. See, e.g., Liriano v. Hobart Corp., 170 F.3d 264, 270-71 (2d Cir. 1999) (holding that the issue of whether a meat grinder manufacturer had a duty to warn of the obvious danger presented by the machine's use without a protective guard is a question for the jury). These courts utilize some version of the consumer expectation test, whereby the issue of whether the danger is obvious is judged by whether it would be obvious to an ordinary consumer.

For example, in Liriano, the plaintiff was severely injured at work when his hand was caught in a meat grinder manufactured by the defendant. The plaintiff sued under multiple theories, including failure to warn. The manufacturer defended on the ground that it had no duty to warn of any danger because the danger presented by the machine was obvious to the ordinary consumer. While conceding that meat grinders are 'widely known to be dangerous,' the Court of Appeals for the Second Circuit held that the issue of obviousness was a question for the jury. The court determined that even though the danger presented by the meat grinder was obvious, the availability of protective measures was not necessarily apparent. 'Thus, even if New York would consider the danger of meat grinders to be obvious as a matter of law, that obviousness does not substitute for the warning that a jury could, and indeed did, find that [the defendant] had a duty to provide. It follows that we cannot say, as a matter of law, that [the defendant] had no duty to warn [the plaintiff] in the present case.' This analysis reflects how the majority of courts have resolved the issue of obviousness. See also Brune v. Brown Forman Corp., 758 S.W.2d 827, 831 (Tex.Ct. App. 1988) (holding that the issue of whether tequila is obviously safe for its intended purpose without a warning or instructions for its safe use cannot be resolved by summary judgment and must be submitted to the finder of fact).

The Restatement (Third) of Torts also embraces the jury's right to resolve the issue of obviousness. Commentary to the Restatement provides that a product seller is not subject to liability for failing to warn or instruct regarding risks and risk-avoidance measures that should be obvious to, or generally known by, foreseeable product users. Restatement (Third) Torts, '2, comment j (1998). The comment explains that 'when reasonable minds may differ as to whether the risk is obvious or generally known, the issue is to be decided by the trier of fact.' Many courts mirror the principles expounded by the Restatement in determining whether a danger is obvious.

Typically, where courts have found dangers obvious as a matter of law, the dangers have been extremely apparent. For example, a New Jersey court recently held that a manufacturer of loft beds had no duty to warn of the dangers of falling out of the bed because such danger was open and obvious to the ordinary consumer. Mathews v. Univ. Loft Co., 903 A.2d 1120, 1128-29 (N.J. Super. Ct. App. Div. 2006). In particular, the court noted that 'warnings would lose their efficacy and meaning if they were placed on every instrument known to be dangerous, such as a knife, scissor, glass, bat, ball, bicycle, or other product that poses a generally-known risk of injury if misused, dropped, or fallen from.' Without any increased benefit from such a warning, courts have concluded that warnings are unnecessary and perhaps even counterproductive under such circumstances. Where a product is something that many people inherently understand presents a risk of injury or even death, warnings would do little to change behavior. The danger of falling out of a loft bed and hurting oneself is, therefore, on one side of the spectrum of obviousness. Other cases present manifestly obvious dangers of which there is no duty to warn. See, e.g., Campbell v. Amer. Crane Corp., 60 F.3d 1329, 1333 (8th Cir. 1995) (holding that a crane manufacturer has no duty to warn of the risk of injury presented by falling off the boom of a crane because the danger is obvious as a matter of law); Shaffer v. AMF, Inc., 842 F.2d 893, 896 (6th Cir. 1988) (holding that the risk of injury during motorcycle riding is sufficiently obvious to preclude a manufacturer's duty to warn as a matter of law).

Greene v. A.P. Products

Perhaps less obvious than the dangers posed by motorcycles and crane booms, and somewhere more toward the middle of the spectrum, is the danger posed by hair oil. The Supreme Court of Michigan addressed this question in Greene v. A.P. Products, Ltd. There, the plaintiff purchased from a beauty supply store a spray bottle of African Pride Ginseng Miracle Wonder 8 Oil, Hair and Body Mist-Captivate manufactured and sold by the defendants. The product was marketed as a spray-on body and hair moisturizer containing eight natural oils. The product's bottle warned that the user should never spray the oil near sparks or an open flame. There was no warning, however, that the hair oil should be kept out of reach of children or that it was potentially harmful or fatal if swallowed or inhaled. Among the ingredients listed on the bottle were several with an indication of potential danger, including isopropryl myristate, azulene, tocophoerol acetate, and paraffin oil.

Precisely what occurred after the plaintiff brought the bottle home is unclear. Somehow, the plaintiff's 11-month-old son ingested and inhaled the hair oil. The bottle was found with its top, called the pump, and pump actuator missing. When located, the 'pump actuator had been cracked vertically so that the pump could be peeled off and the oil could be poured out.' The child was rushed to the hospital where he was diagnosed with hydrocarbon ingestion and chemical pneumonitis. The child died one month later because the 'mineral oil clogged the child's lungs, causing inflammatory respiratory failure.'

The plaintiff mother subsequently filed a product liability action, alleging that the manufacturer and store had breached their duty to warn that the product could be harmful if ingested. Before trial, the defendants moved for summary judgment, contending that they had no duty to warn because the material risks associated with ingesting the hair oil were obvious to a reasonably prudent product user. The trial court granted the motion. The appellate court reversed and remanded, concluding that the issue of obviousness should have been submitted to the jury. A divided supreme court reversed the appellate court and held that the danger posed by the product was obvious as a matter of law and thus not appropriate for a jury to consider.

The Michigan legislature had codified the obvious danger doctrine through a tort reform statute in 1996. Under that statute, a 'defendant is not liable for failure to warn of a material risk that is or should be obvious to a reasonably prudent product user or a material risk that is or should be a matter of common knowledge to persons in the same or similar position …' Mich. Comp. Laws '600.2948(2) (2005). The Michigan statute differs from the Restatement's application of the obvious danger doctrine in two important ways. First, the Restatement adopts an objective 'ordinary consumer expectations' standard. See Restatement (Third) Torts '2, comment g (1998). Michigan, on the other hand, uses both an objective and subjective component in determining obviousness. Mich. Comp. Laws '600.2948(2) (2005). In effect, the statute gives a product seller or manufacturer two opportunities to establish that the product is patently dangerous. The defendant can negate its duty to warn by either showing that most consumers know that the product presents an obvious risk or that similarly situated product users knew of the obvious risk. The Greene court did not apply the subjective component because an infant was involved. Instead, the court applied the objective prong to determine that the defendants had no duty to warn.

Second, the Restatement provides a higher standard for defendants to establish obviousness than the Michigan statute. Under the Restate- ment, the rule applies to the conduct of a 'foreseeable user.' Restatement (Third) Torts, '2, comment j (1998). The Michigan statute, however, refers to 'reasonably prudent' users. This difference resulted in the Greene court holding a manufacturer to a lower standard to establish the obviousness of a danger than the Restatement would have required. Ultimately, the holding in Greene makes it easier for a manufacturer to establish that the product has an obvious danger, thereby negating a manufacturer's duty to warn. This lower standard, in turn, permits a court to determine that reasonable minds could not differ on the issue of whether the product possesses an obvious danger.

Next, the majority in Greene construed 'material risk' to mean 'an important or significant exposure to the chance of injury or loss.' In doing so, the court eliminated a manufacturer's duty to warn of a specific risk of injury. Instead, the court concluded that 'the statute does not require that a warning address possible injuries that might occur.' This interpretation permitted the court to look at the product globally without regard to the degree of harm posed by a specific danger. All risks of harm are subsumed under the general risk presented by the product. Consequently, the court concluded that the risk of a minor injury requires the same precautions or warnings as the risk of death.

Justice Michael F. Cavanagh's pointed dissent asserted that the majority incorrectly interpreted the statute by conflating the obviousness of one risk to the obviousness of all risks. He argued that the essence of the newly articulated rule is that 'the alleged obviousness of 'any' material risk absolves a manufacturer from warning about 'all' material risks, even if other material risks are not obvious.' Justice Cavanagh concluded that reasonable minds could differ as to the obviousness of the danger presented by the hair oil and that a jury should have had the opportunity to decide the issue.

In a separate section, the majority responded to Justice Cavanagh, rejecting any implication that it was adopting a one-danger-fits-all analysis. Instead, the Greene majority concluded that the 'material risk in this case is neither the misuse of the product (the inhalation or ingestion) nor the consequence of misuse (injury or death)' but is the 'important or significant exposure to the chance of loss or injury stemming from certain behavior.' In addition, the majority deflected any perceived fallout from its holding to the shoulders of the Michigan legislature. The court opined 'that the Legislature, not this Court, refused to impose a duty to warn of obvious material risks. Justice Cavanagh does not deny this, but evidently chooses to ignore it.'

With these principles firmly in mind, the majority examined the facts before it and concluded that:

it would … be obvious to a reasonably prudent user that ingestion and inhalation of the product poses a material risk … It should be obvious to a reasonably prudent product user that many oils, although natural, pose a material risk if ingested or inhaled …

* * *

Accordingly, we hold that defendants owed no duty to warn plaintiff that her son's ingestion and inhalation of the Wonder 8 Hair Oil posed a material risk. Moreover, defendants owed no duty to warn of the potential injuries that could arise from ingesting and inhaling the product. Id. at 861-62.

This holding has two significant effects. First, the Supreme Court of Michigan rejected imposing a duty on a manufacturer and sellers to warn users of specific types of injuries that could result from a risk. By defining the term 'material risk' broadly, the court eliminated many factual questions that a jury would have otherwise needed to resolve. The result is that different consequences of the danger are immaterial to the analysis. The advantage is that this bright-line rule is easier for courts to apply and eliminates the need for difficult factual determinations.

Second, the Greene decision signals to potential failure-to-warn defendants that courts may define the risk posed by their product on a very specific basis. This means that a court utilizing the rule in Greene would look to the dangers posed by each specific manner in which a product could be used or misused. In formulating a defense to a failure to warn claim, the Greene rule requires that a defendant show that the particular act involved, for example topical application of hair oil, involves an obvious danger to the consumer. A well-executed defense will explain exactly what actions involving the product in question presented an obvious danger to the user.

Does Greene Indicate a Shifting Landscape?

Greene illustrates that the obvious danger rule remains a factually sensitive analysis, even when a court ultimately concludes that the product possesses an obvious danger as a matter of law. Similar cases will continue to be resolved differently because each product will be evaluated on an individual basis. The general rules applied will be the same, but products will necessarily be evaluated on a case-by-case basis. In this respect, Greene is not a marked departure from established tort principles. No two cases will be treated with a broad brush. Instead, a court must look to the particular properties of the product to determine whether its characteristics are obviously dangerous.

In addition, this court's interpretation of the Michigan statute may foreshadow similar decisions in other jurisdictions that have adopted tort reform measures. In states that changed their tort laws to curb recovery for personal injuries, this decision may be seen as a logical result of the statutory modification. In states considering tort reform, the Greene court's reliance on statutory provisions could hasten the effort to codify rules, making it more difficult for plaintiffs to recover for injuries that result from obvious dangers.

Finally, Greene may indicate that courts are becoming more assertive in analyzing 'gray' areas of obviousness as questions of law instead of leaving them as issues of fact for the jury. While this recent decision has yet to be followed by other courts, it may signal a new trend in failure-to-warn claims. Perhaps most importantly, the decision may be a harbinger of a lower burden on manufacturers to establish that a product's danger is obvious. Moreover, the decision in Greene suggests that courts might be more receptive to the obvious danger doctrine at the summary judgment stage. As a result, counsel should be aware that asserting the obvious danger rule at summary judgment may become a more successful strategy in the future. Greene hints that not every close question of obviousness is appropriate for the jury. Counsel should consider the obvious danger rule as a meaningful defense each time a plaintiff asserts a failure-to-warn claim. Greene suggests that the outcome at the summary judgment stage might be less obvious than once imagined.

James H. Rotondo is co-chair of the Commercial Litigation Department at Day Pitney LLP, in Hartford, CT. He focuses his practice on product liability and insurance litigation. Robert E. Koosa is an associate in the Commercial Litigation Department at the firm. His practice focuses on the litigation and trial of product liability, negligence, and insurance coverage cases. James E. Hennessey is an associate in the Commercial Litigation Department at the firm.

Traditional tort law principles provide that product manufacturers and sellers have a duty to warn of hidden risks that pose a danger to product users. As a corollary, courts generally hold that manufacturers and sellers have no duty to warn consumers of obvious dangers inherent in the product. Consequently, most judges have left to the jury the question of whether the danger of injury from a product is obvious. Against this backdrop, a recent decision has cast doubt on the accepted notion that obviousness is necessarily a question for the jury. Specifically, the Supreme Court of Michigan held in Greene v. A.P. Products, Ltd., 717 N.W.2d 855, reh'g denied , 720 N.W.2d 748 (Mich. 2006) that, as a matter of law, hair oil posed an open and obvious danger to consumers that negated any duty to warn that the product could kill if ingested or inhaled.

This article has three purposes. First, it explores the traditional application of the obvious danger rule in failure-to-warn cases. Second, it analyzes the Greene case, where the court determined that the dangers posed by ingesting or inhaling hair oil, including the resultant death of an 11-month old child, were so obvious that there was no duty to warn consumers. Third, it places Greene in context within the current legal landscape.

Origin of the Obvious Danger Doctrine

The obvious danger doctrine emerged, as have many principles of tort law, from a set of memorable facts. Clemence Lorenzo was returning one night to her rented home in Boston. The sidewalk in front of Lorenzo's home was level with the street and contained a 'coal hole' about two feet in from the edge of the street line and 30 inches from her neighbor's porch. Such holes, which were actually hatches over underground coal bunkers, were used in the Northeast to store residents' heating supplies during the winter. The sidewalk in front of Lorenzo's home was covered with recently delivered coal that was being shoveled off a delivery truck and poured into the coal hole. As Lorenzo approached her home, she stepped up onto her neighbor's porch to avoid the coal, but when stepping back toward the sidewalk, fell into the coal hole, of which she had previously been unaware. Lorenzo sued Jacob Wirth, the owner of the home, claiming that he had been negligent by opening a coal hole without warning pedestrians of the dangers that the hole presented. According to Lorenzo, she had never seen coal put through a coal hole before. Lorenzo v. Wirth , 49 N.E. 1010, 1010-11 (Mass. 1898).

Justice Oliver Wendell Holmes, Jr. concluded that Wirth had no duty to warn of the danger because the coal hole was an obvious jeopardy of which most people in the area were aware. Holmes opined that '[i]n simple cases of this sort, courts have felt able to determine what, in every case, however complex, defendants are bound at their peril to know, and are presumed to know, namely, whether the given situation is one or the other side of the line.' Holmes concluded, a 'heap of coal on a sidewalk in Boston is an indication, according to common experience, that there very possibly may be a coal hole to receive it.' To that end, 'we are of the opinion that as against a person coming from where the plaintiff came from … the defendant cannot be said to have been wanting in due care.' Thus, the obvious danger doctrine was born.

Justice Holmes, however, did not persuade every jurist on the panel in Lorenzo that the danger presented by the coal hole was patently obvious. To Justice Marcus Perrin Knowlton, the danger was significantly less apparent. Knowlton concluded that this situation presented facts where reasonable minds could differ as to the defendant's duty of care. 'I think that the jury well might have found that a coal hole on a public sidewalk where a throng of persons was passing in each direction was left open on a dark evening, with coal scattered about it from the curbstone to the side of the defendant's building …' presented a danger against which the defendant had a duty to protect. Justice Knowlton reasoned that '[w]hat kind of conduct is required under complex conditions, to reach the usual standard of due care, namely, the ordinary care of persons of common prudence, is a question of fact, to be determined according to the observation and experience of common men.' While Holmes' position won the day in 1898, Knowlton's view has become the widely accepted norm in tort law. Consequently, in the vast gray area where reasonable minds could differ as to the obviousness of the danger, most judges have permitted the jury to resolve the issue.

The majority of courts have found that the alleged obviousness of a danger is an issue for the jury to resolve. See, e.g., Liriano v. Hobart Corp., 170 F.3d 264, 270-71 (2d Cir. 1999) (holding that the issue of whether a meat grinder manufacturer had a duty to warn of the obvious danger presented by the machine's use without a protective guard is a question for the jury). These courts utilize some version of the consumer expectation test, whereby the issue of whether the danger is obvious is judged by whether it would be obvious to an ordinary consumer.

For example, in Liriano, the plaintiff was severely injured at work when his hand was caught in a meat grinder manufactured by the defendant. The plaintiff sued under multiple theories, including failure to warn. The manufacturer defended on the ground that it had no duty to warn of any danger because the danger presented by the machine was obvious to the ordinary consumer. While conceding that meat grinders are 'widely known to be dangerous,' the Court of Appeals for the Second Circuit held that the issue of obviousness was a question for the jury. The court determined that even though the danger presented by the meat grinder was obvious, the availability of protective measures was not necessarily apparent. 'Thus, even if New York would consider the danger of meat grinders to be obvious as a matter of law, that obviousness does not substitute for the warning that a jury could, and indeed did, find that [the defendant] had a duty to provide. It follows that we cannot say, as a matter of law, that [the defendant] had no duty to warn [the plaintiff] in the present case.' This analysis reflects how the majority of courts have resolved the issue of obviousness. See also Brune v. Brown Forman Corp., 758 S.W.2d 827, 831 (Tex.Ct. App. 1988) (holding that the issue of whether tequila is obviously safe for its intended purpose without a warning or instructions for its safe use cannot be resolved by summary judgment and must be submitted to the finder of fact).

The Restatement (Third) of Torts also embraces the jury's right to resolve the issue of obviousness. Commentary to the Restatement provides that a product seller is not subject to liability for failing to warn or instruct regarding risks and risk-avoidance measures that should be obvious to, or generally known by, foreseeable product users. Restatement (Third) Torts, '2, comment j (1998). The comment explains that 'when reasonable minds may differ as to whether the risk is obvious or generally known, the issue is to be decided by the trier of fact.' Many courts mirror the principles expounded by the Restatement in determining whether a danger is obvious.

Typically, where courts have found dangers obvious as a matter of law, the dangers have been extremely apparent. For example, a New Jersey court recently held that a manufacturer of loft beds had no duty to warn of the dangers of falling out of the bed because such danger was open and obvious to the ordinary consumer. Mathews v. Univ. Loft Co. , 903 A.2d 1120, 1128-29 (N.J. Super. Ct. App. Div. 2006). In particular, the court noted that 'warnings would lose their efficacy and meaning if they were placed on every instrument known to be dangerous, such as a knife, scissor, glass, bat, ball, bicycle, or other product that poses a generally-known risk of injury if misused, dropped, or fallen from.' Without any increased benefit from such a warning, courts have concluded that warnings are unnecessary and perhaps even counterproductive under such circumstances. Where a product is something that many people inherently understand presents a risk of injury or even death, warnings would do little to change behavior. The danger of falling out of a loft bed and hurting oneself is, therefore, on one side of the spectrum of obviousness. Other cases present manifestly obvious dangers of which there is no duty to warn. See, e.g., Campbell v. Amer. Crane Corp. , 60 F.3d 1329, 1333 (8th Cir. 1995) (holding that a crane manufacturer has no duty to warn of the risk of injury presented by falling off the boom of a crane because the danger is obvious as a matter of law); Shaffer v. AMF, Inc. , 842 F.2d 893, 896 (6th Cir. 1988) (holding that the risk of injury during motorcycle riding is sufficiently obvious to preclude a manufacturer's duty to warn as a matter of law).

Greene v. A.P. Products

Perhaps less obvious than the dangers posed by motorcycles and crane booms, and somewhere more toward the middle of the spectrum, is the danger posed by hair oil. The Supreme Court of Michigan addressed this question in Greene v. A.P. Products, Ltd. There, the plaintiff purchased from a beauty supply store a spray bottle of African Pride Ginseng Miracle Wonder 8 Oil, Hair and Body Mist-Captivate manufactured and sold by the defendants. The product was marketed as a spray-on body and hair moisturizer containing eight natural oils. The product's bottle warned that the user should never spray the oil near sparks or an open flame. There was no warning, however, that the hair oil should be kept out of reach of children or that it was potentially harmful or fatal if swallowed or inhaled. Among the ingredients listed on the bottle were several with an indication of potential danger, including isopropryl myristate, azulene, tocophoerol acetate, and paraffin oil.

Precisely what occurred after the plaintiff brought the bottle home is unclear. Somehow, the plaintiff's 11-month-old son ingested and inhaled the hair oil. The bottle was found with its top, called the pump, and pump actuator missing. When located, the 'pump actuator had been cracked vertically so that the pump could be peeled off and the oil could be poured out.' The child was rushed to the hospital where he was diagnosed with hydrocarbon ingestion and chemical pneumonitis. The child died one month later because the 'mineral oil clogged the child's lungs, causing inflammatory respiratory failure.'

The plaintiff mother subsequently filed a product liability action, alleging that the manufacturer and store had breached their duty to warn that the product could be harmful if ingested. Before trial, the defendants moved for summary judgment, contending that they had no duty to warn because the material risks associated with ingesting the hair oil were obvious to a reasonably prudent product user. The trial court granted the motion. The appellate court reversed and remanded, concluding that the issue of obviousness should have been submitted to the jury. A divided supreme court reversed the appellate court and held that the danger posed by the product was obvious as a matter of law and thus not appropriate for a jury to consider.

The Michigan legislature had codified the obvious danger doctrine through a tort reform statute in 1996. Under that statute, a 'defendant is not liable for failure to warn of a material risk that is or should be obvious to a reasonably prudent product user or a material risk that is or should be a matter of common knowledge to persons in the same or similar position …' Mich. Comp. Laws '600.2948(2) (2005). The Michigan statute differs from the Restatement's application of the obvious danger doctrine in two important ways. First, the Restatement adopts an objective 'ordinary consumer expectations' standard. See Restatement (Third) Torts '2, comment g (1998). Michigan, on the other hand, uses both an objective and subjective component in determining obviousness. Mich. Comp. Laws '600.2948(2) (2005). In effect, the statute gives a product seller or manufacturer two opportunities to establish that the product is patently dangerous. The defendant can negate its duty to warn by either showing that most consumers know that the product presents an obvious risk or that similarly situated product users knew of the obvious risk. The Greene court did not apply the subjective component because an infant was involved. Instead, the court applied the objective prong to determine that the defendants had no duty to warn.

Second, the Restatement provides a higher standard for defendants to establish obviousness than the Michigan statute. Under the Restate- ment, the rule applies to the conduct of a 'foreseeable user.' Restatement (Third) Torts, '2, comment j (1998). The Michigan statute, however, refers to 'reasonably prudent' users. This difference resulted in the Greene court holding a manufacturer to a lower standard to establish the obviousness of a danger than the Restatement would have required. Ultimately, the holding in Greene makes it easier for a manufacturer to establish that the product has an obvious danger, thereby negating a manufacturer's duty to warn. This lower standard, in turn, permits a court to determine that reasonable minds could not differ on the issue of whether the product possesses an obvious danger.

Next, the majority in Greene construed 'material risk' to mean 'an important or significant exposure to the chance of injury or loss.' In doing so, the court eliminated a manufacturer's duty to warn of a specific risk of injury. Instead, the court concluded that 'the statute does not require that a warning address possible injuries that might occur.' This interpretation permitted the court to look at the product globally without regard to the degree of harm posed by a specific danger. All risks of harm are subsumed under the general risk presented by the product. Consequently, the court concluded that the risk of a minor injury requires the same precautions or warnings as the risk of death.

Justice Michael F. Cavanagh's pointed dissent asserted that the majority incorrectly interpreted the statute by conflating the obviousness of one risk to the obviousness of all risks. He argued that the essence of the newly articulated rule is that 'the alleged obviousness of 'any' material risk absolves a manufacturer from warning about 'all' material risks, even if other material risks are not obvious.' Justice Cavanagh concluded that reasonable minds could differ as to the obviousness of the danger presented by the hair oil and that a jury should have had the opportunity to decide the issue.

In a separate section, the majority responded to Justice Cavanagh, rejecting any implication that it was adopting a one-danger-fits-all analysis. Instead, the Greene majority concluded that the 'material risk in this case is neither the misuse of the product (the inhalation or ingestion) nor the consequence of misuse (injury or death)' but is the 'important or significant exposure to the chance of loss or injury stemming from certain behavior.' In addition, the majority deflected any perceived fallout from its holding to the shoulders of the Michigan legislature. The court opined 'that the Legislature, not this Court, refused to impose a duty to warn of obvious material risks. Justice Cavanagh does not deny this, but evidently chooses to ignore it.'

With these principles firmly in mind, the majority examined the facts before it and concluded that:

it would … be obvious to a reasonably prudent user that ingestion and inhalation of the product poses a material risk … It should be obvious to a reasonably prudent product user that many oils, although natural, pose a material risk if ingested or inhaled …

* * *

Accordingly, we hold that defendants owed no duty to warn plaintiff that her son's ingestion and inhalation of the Wonder 8 Hair Oil posed a material risk. Moreover, defendants owed no duty to warn of the potential injuries that could arise from ingesting and inhaling the product. Id. at 861-62.

This holding has two significant effects. First, the Supreme Court of Michigan rejected imposing a duty on a manufacturer and sellers to warn users of specific types of injuries that could result from a risk. By defining the term 'material risk' broadly, the court eliminated many factual questions that a jury would have otherwise needed to resolve. The result is that different consequences of the danger are immaterial to the analysis. The advantage is that this bright-line rule is easier for courts to apply and eliminates the need for difficult factual determinations.

Second, the Greene decision signals to potential failure-to-warn defendants that courts may define the risk posed by their product on a very specific basis. This means that a court utilizing the rule in Greene would look to the dangers posed by each specific manner in which a product could be used or misused. In formulating a defense to a failure to warn claim, the Greene rule requires that a defendant show that the particular act involved, for example topical application of hair oil, involves an obvious danger to the consumer. A well-executed defense will explain exactly what actions involving the product in question presented an obvious danger to the user.

Does Greene Indicate a Shifting Landscape?

Greene illustrates that the obvious danger rule remains a factually sensitive analysis, even when a court ultimately concludes that the product possesses an obvious danger as a matter of law. Similar cases will continue to be resolved differently because each product will be evaluated on an individual basis. The general rules applied will be the same, but products will necessarily be evaluated on a case-by-case basis. In this respect, Greene is not a marked departure from established tort principles. No two cases will be treated with a broad brush. Instead, a court must look to the particular properties of the product to determine whether its characteristics are obviously dangerous.

In addition, this court's interpretation of the Michigan statute may foreshadow similar decisions in other jurisdictions that have adopted tort reform measures. In states that changed their tort laws to curb recovery for personal injuries, this decision may be seen as a logical result of the statutory modification. In states considering tort reform, the Greene court's reliance on statutory provisions could hasten the effort to codify rules, making it more difficult for plaintiffs to recover for injuries that result from obvious dangers.

Finally, Greene may indicate that courts are becoming more assertive in analyzing 'gray' areas of obviousness as questions of law instead of leaving them as issues of fact for the jury. While this recent decision has yet to be followed by other courts, it may signal a new trend in failure-to-warn claims. Perhaps most importantly, the decision may be a harbinger of a lower burden on manufacturers to establish that a product's danger is obvious. Moreover, the decision in Greene suggests that courts might be more receptive to the obvious danger doctrine at the summary judgment stage. As a result, counsel should be aware that asserting the obvious danger rule at summary judgment may become a more successful strategy in the future. Greene hints that not every close question of obviousness is appropriate for the jury. Counsel should consider the obvious danger rule as a meaningful defense each time a plaintiff asserts a failure-to-warn claim. Greene suggests that the outcome at the summary judgment stage might be less obvious than once imagined.

James H. Rotondo is co-chair of the Commercial Litigation Department at Day Pitney LLP, in Hartford, CT. He focuses his practice on product liability and insurance litigation. Robert E. Koosa is an associate in the Commercial Litigation Department at the firm. His practice focuses on the litigation and trial of product liability, negligence, and insurance coverage cases. James E. Hennessey is an associate in the Commercial Litigation Department at the firm.