N.J. Model Civil Jury Charge 5.40C

5.40C FAILURE TO WARN/INSTRUCT1

(Approved 3/00; Revised 11/2023)

Let me now discuss the law governing the plaintiff’s claim of failure to warn.

If a product fails to contain an adequate warning or instructions, it is defective.

[Plaintiff] says the [Product] did not contain an adequate warning or instruction

because [insert short factual description of plaintiff’s contention why the warning

was inadequate]. [Defendant] says the [Product] did contain an adequate warning

or instruction because [insert short factual description].

The [Defendant] as the manufacturer or seller of a product had a duty to

provide adequate warnings or instructions about the dangers the [Product] may

present. [Defendant] had this duty even if the [Product] were perfectly designed and

manufactured. To decide the plain tiff’s failure to warn claim you must determine

what warnings and instructions the defendant provided and whether those warnings

and instructions were adequate.

Let’s talk about what a warning or instruction is. Warnings or instructions

may consist of sta tements that a product should n ot be used at all under certain

circumstances, that it should be used only in a particular way, or that it should be

used with particular care. Warnings or instructions may be in the form of words,

1 See N.J.S.A. 2A:58C-4.

symbols, or pictures. The y must be in a form which will effectively convey the

information essential to make the use of the product reasonably safe.

To be adequate, the warning or instruction must be the kind of warning or

instruction which a reasonably prudent manufacturer or seller in the same or similar

circumstances would have provided to people intended to use the product. Adequate

information may be required to be given to others in the chain of distribution of the

product such as from the manufacturer and the seller to the buyer, or from the

manufacturer and the seller directly to the user.

2 An adequate warning or instruction

will communicate sufficient information on the dangers of the product and how to

use the product safely. When deciding whether the information provi ded is

adequate, you should take into account the characteristics of the people reasonably

expected to use the product and ordinary common knowledge.3

2 For the extent of this duty, see Michalko v. Cooke Color and Chemical Corp., 9l N.J. 386 (l982).

For failure to warn in asbestos cases, see Fowler v. Akzo Nobel Chem icals, Inc., 251 N.J. 300

(2022). For duty in the context of a manufacturer/distributor of a product that, by their design,

require the replacement of asbestos -containing components with other asbestos -containing

components, see Whelan v. Armstrong International, Inc., 242 N.J. 311 (2020).

3 If the product is a prescription drug, insert the following:

In the case of a prescription drug, the warning must be one that a

reasonably prudent manufacturer would have provided to adequately

communicate information on the dangers and safe use of the product to

physicians, taking into account the characteristics o f, and the ordinary

knowledge common to, such prescribing physicians.

See N.J.S.A. 2A:58C-4 regarding the effect of FDA approval upon a warning or instruction given

for a prescription drug. See also Feldman v. Lederle Laboratories, 125 N.J. 117 (l991).

In deciding whether the warning or instruction given in this case was

adequate, you must assume the [Defendant Manufacturer/Seller] knew of the

dangers of the [Product] at the time [Product] was sold/distributed. With that

assumption you must then decide whether the [Defendant] acted in a reasonable,

prudent manner in marketing the [Product] without any warnings/with the particular

form of warning that was provided.

[Charge when applicable:]

In this case [Defendant] contends that [describe danger] was not knowable at

the time the [Product] was manufactured/sold. If [Defendant] proves that the danger

in question was not knowable by it at the time of manufacture or sale, then it had no

duty to warn of the danger and cannot be held liable for failure to do so. 4 In

evaluating this defense of [Defendant], you may consider evidence relating to

[Defendant’s] knowledge of the danger of the [Product]. A duty to warn arises if

[Defendant] (the manufacturer/seller) actually knew or should have known of the

need to issue a particular warning.

In determining what [Defendant] should have known, you must understand

that the law requires a manufacturer/seller to keep reasonably familiar with and to

know reliable information generally available or reasonably obtainable in the

4 See Feldman v. Lederle Laboratories, 97 N.J. 429 (l984).

industry. In that regard, [Defendant] is deemed to be an expert i n its field. 5 This

information may come from experts and literature in the field. Moreover,

information from other sources such as complaints from users, sellers, or distributors

of an untoward effect of a product may be sufficient to require an appropr iate

warning.

[Charge when applicable:]

A manufacturer or seller such as [Defendant] may also have responsibility to

warn purchasers and consumers of dangers discovered after the product was

sold/distributed. This duty arises when subsequently obtained knowledge, both

actual or constructive, was available either at the time of distribution or in sufficient

time before the accident/injury so that an effective and reasonable supplemental

warning could have been given. In this regard it is the defendant who must prove

that the information about the danger was not reasonably available or obtainable

either at the time of distribution or in sufficient time before the accident/injury.6

To establish a claim of failure to warn, [Plaintiff] must prove all of the

following elements by a preponderance (greater weight) of the credible evidence:

l. That the [Product] failed to contain an adequate warning/instruction.

5 See Feldman, supra, footnote 10.

6 There is a post -sale duty to warn. See Feldman v. Lederle Laboratories , 97 N.J. 429 (l984);

Dixon v. Jacobsen Manufacturing Co., 270 N.J. Super. 569 (App. Div. l994); Seeley v. Cincinnati

Shaper Co., Ltd., 256 N.J. Super. l (l992); and New Jersey Product Liability Act, N.J.S.A . 58-l et

seq., section four.

2. That the failure to adequately warn/instruct existed before the [Product] left

the control of the [Defendant].

3. [Use only when misuse or intentional alteration is an issue and use only

applicable portion.] That when the accident happened the [Product] was not

being misused, or it had not been substantially altered in a way that was not

reasonably foreseeable.

[Plaintiff] must prove that at the time of the accident the [Product] was being

used properly for its intended purposes or for an intended or reasonably foreseeable

purpose. To prove this, plaintiff must show that the product was not being misused

in a way that was neither intended nor was reasonably foreseeable. In this case, the

[Defendant] contends that at the time of the accident the [Product] was being

misused. [Set forth a brief factual description of this dispute.]

[Plaintiff] must also show that when [Plaintiff] used the [Product], it had not

been substantially altered since it left [Defendant’s] control. A substantial alteration

is a change or modification made to the product after it was manufactured or sold

which both alters the design or function of the product and has a significant or

meaningful effect on the product’s safety when used.

7 In this case the defendant

contends that the [Product] was substantially altered. [Set forth a brief factual

description of this dispute.]

7 See Soler v. Casemaster, Div. of the H.P.M. Corp., 98 N.J. 137 (l984); Brown v. United States

Stove Co., 98 N.J. 155 (l984). Note that an issue of alteration arises only if the particular facts

indicate a substantial change relating to the safety of the product. Soler , 98 N.J. at 148. Note

further that the issue of misuse/abnormal use or substantial alteration, if present in a case, presents

considerations bearing upon proximate cause. Id. at 149; Brown, supra, 98 N.J. at 171-174. See

also Fabian v. Minster Mach. Co., Inc., 258 N.J. Super. 261 at 277 footnote 5.

In considering this issue, you must determine whether there has been a

subsequent misuse/abnormal use or substantial alteration to the [Product]. If you

find that to exist, you must determine whether the misuse/abnormal use or

substantial alteration was reasonably foreseeable at the time the product left the

control of the [Defendant].

Reasonably foreseeable does not mean that the particular misuse/abnormal

use or substantial alteration was actually foreseen or could have been actually

foreseen by [Defendant] at the time the [Product] left [Defendant’s] control.

This is a test of objective foreseeability. You must consider the general

experience within the industry when the [Product] was manufactured, sold or

distributed. Then decide whether a reasonably careful manufacturer, seller or

distributor could have anticipated the misuse/abnormal use or substantial alteration

of the [Product].8 If the alteration reasonably could have been anticipated, and if

the alteration made the product not reasonably safe, the defendant is still responsible.

[Plaintiff] has the burden to show that a typical manufacturer or seller of the product

could foresee that the product would be altered or that despite the alteration the

original defect was nonetheless a cause of the injury.9

8 Where there is an issue of misuse/abnormal use or substantial alteration, a jury need not consider

the presence of a defect unless it resolves the element of foreseeability against the defendant(s).

In such a case, the trial judge might consider altering the charge so that mi suse/abnormal use or

substantial alteration is charged first.

9 Brown, supra, 98 N.J. at 169.

4. That the [Plaintiff] was a direct or reasonabl y foreseeable user, or a person

who might reasonably be expected to come in contact with the [Product].10

5. That the [Plaintiff] would have followed an adequate warning/instruction if it

had been provided.11

[When defendant offers no evidence or insufficient evidence to rebut the

heeding presumption, a directed verdict on this issue should be granted.]

10 This may be omitted if not in dispute.

11 In Coffman v. Keene Corp., 133 N.J. 581 (1993), and Theer v. Philip Carey Co., 133 N.J. 610

(l993), the Supreme Court adopted the heeding presumption which applies to all failure to warn

and inadequate warning cases and provides plaintiff with a rebuttable presumption on the issue of

proximate cause, i.e., if a warning or instruction had been given, such warning or instruction would

have been heeded by plaintiff. In such cases, the burden of production on the issue of proximate

cause shifts to the defendant to come forward with rebuttal evidence sufficient to demonstrate that

a warning would have made known to plaintiff the danger of the product and not withstanding the

knowledge imparted by the warning, plaintiff would have proceeded voluntarily and unreasonably

to subject plaintiff to the dangerous product.

If the defendant fails to meet this burden of production, the trial judge shall direct a verdict

in plaintiff’s favor on this issue of proximate cause.

If the defendant presents rebuttal evidence such that reasonable minds could differ as to

whether the warning, if given, would have been heeded by the plaintiff, the defendant has satisfied

its burden of production and plaintiff loses the benefit of the presumption. The plaintiff must then

carry the burden of proof (persuasion) as to this proximate cause. Sharpe v. Bestop, Inc., 314 N.J.

Super. 54 (App. Div. 1998); 157 N.J. 545 (1999).

When the injury is sustained in the workplace, the presumption and burden of the defendant

is slightly different. There the presumption contains a second tier. The presumption is not only

that the employee would have heeded the warning, but additionally that the employer would have

heeded the warning and communicated it to the employees and enabled them to take precautions.

Theer v. Philip Carey Co ., 133 N.J. at 622. The manufacturer/seller may overcome the

presumption by proving that the employee or the employee’s employer would have disregarded an

adequate warning. Coffman v. Keene Corp., 133 N.J. at 609. Further, “the manufacturer must

prove that had an adequate warning been provided, the plaintiff-employee with meaningful choice

would not have heeded the warning.” Id. A meaningful choice requires that the plaintiff/employee

not be in a position where plaintiff/employee is forced to work with the product or machine or lose

their job. Id at 604. See also Facendo v. S.M.S. Concast, 286 N.J. Super. 575 (App. Div. 1996);

Graves v. Church & Dwight Co., Inc., 267 N.J. Super. 445 (App. Div. 1993) (a non-workplace

case).

[When defendant offers evidence sufficient to rebut the heeding

presumption, charge as follows:]12

In this case, [Plaintiff] claims that the [Product] was defective because there

was no adequate warning/instruction. If you find that the [Product] was defective

because adequate warning/instruction was not given, then you must decide whether

the lack of an adequate warning/instruction was a proximate cause of the accident.

The [Defendant] has introduced evidence seeking to show that [Plaintiff]

would not have read and followed an adequate warning/instruction even if one had

been provided by the defendant.

12 Caveat: There are two threshold determinations for admissibility of rebuttal evidence to the

heeding presumption [viz., proof of habit that involves a risk similar to that not warned of]:

(1) With regard to the substantive proofs necessary to rebut the heeding presumption, it is

important to distinguish between habit and character evidence when offered by a product

manufacturer to overcome the presumption. Only evidence of a habit related to the specific

situation not a character trait may be offered to rebut the presumption. In Sharpe v. Bestop, 34

N.J. Super. 54 (App. Div. 1998); 158 N.J. 545 (1999), the Supreme Court offered the following:

[T]he Advisory Committee [on the Federal Rules] noted in its Comment to Rule

406 [that] habit ‘describes one’s regular response to a repeated specific situation.’

‘[B]efore a court may admit evidence of habit, the offering party must establish the

degree of specificity and frequency of uniform response that ensures more than a

mere “tendency” to act in a given manner, but rather, conduct that is

“semiautomatic in nature.”’ Simplex, Inc. v. Diversified Energy Systems, Inc., 847

F.2d 1290, 1293 (7th Cir. 1988).

(2) Even after rebuttal evidence of failure to follow warnings in other contexts rises to the level of

habit, the trial court must determine whether such evidence “is sufficiently similar in character and

quality to establish the likelihood of a similar response” to the risk or hazard in issue. Sharpe v.

Bestop, 158 N.J. at 331-32 (1999). Thus, in Sharpe, the Supreme Court gave the example that

they would “ not find that evidence of one’s repeated failure to follow a doctor’s advice to lose

weight is sufficiently similar in character and quality to establish the likelihood of a similar

response to a safety warning concerning boating waters” (emphasis added) (citing Verdun v. State,

Through Dep’t of Health and Human Resources, 598 So. 2d 1091, 1095 (La. Ct. App.), writ denied,

604 So. 2d 1003 (La. 1992). Id. at 329.

You have to decide whether plaintiff would have read and heeded a

warning/instruction had one been given or that the plaintiff would not have read and

heeded a warning/instruction had one been given.

Plaintiff has the burden to prove by a preponderance of the credible evidence

that the plaintiff would have followed an adequate warning/instruction if it had been

provided.

6. That the failure to adequately warn/instruct was a proximate cause of the

accident/injury.13

Proximate cause means that the failure to warn/instruct was a substantial

factor which singly, or in combination with another cause or causes, brought about

the accident. [Plaintiff] need not prove that this accident could have been anticipated

so long as it was foreseeable that some harm could result from the failure to

warn/instruct. If an adequate warning/instruction would have reduced the risk of the

occurrence of this accident, you may find that its absence was a contributing factor

13 Plaintiff is required to prove that the absence of a warning was a proximate cause of plaintiff’s

harm. This is known as product -defect causation. Coffman v. Keene Corp., 133 N.J. 58l, 594

(l993). Further, in some failure to warn cases another kind of causation must normally be proved

-- medical causation. Therefore, proximate cause may require two questions:

l. Was the defect (failure to warn) a proximate cause of plaintiff’s exposure to the product?

2. Was the exposure to the product a proximate cause of plaintiff’s injury?

See Graves v. Church Dwight Co., Inc., 267 N.J. Super . 445, 450 (App. Div. l993). In

cases where the plaintiff is dead or otherwise incapable of testifying at trial, see Sharpe v.

Bestop, 314 N.J. Super. 54 at 83.

to the happening of this accident. If, on the other hand, the failure to warn/instruct

does not add to the risk of the occurrence of this accident and therefore is not a

contributing factor to the happening of the accident, then plaintiff has failed to

establish that the failure to warn/instruct was a proximate cause of the accident.

[Instruction on intervening cause, where applicable:]

In this case the [Defendant] contends that [set forth defendant’s contention]

was an intervening cause.

An intervening cause is the act of an independent agency which destroys the

causal connection between the defect in the product and the accident. To be an

intervening cause the independent act must be the immediate and sole cause of the

accident. In that event, liability will not be established because the failure to

warn/instruct is not a proximate cause of the injury. However, the defendant would

not be relieved from liability for its failure to warn/instruct by the intervention of

acts of third person s if those acts were reasonably foreseeable. Where the

intervention of third parties is reasonably foreseeable, then there is a substantial

causal connection between the product defect and the accident.

14 You must

determine whether the [alleged interveni ng cause] was an intervening cause that

14 Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 573 (App. Div. l986), and Butler v.

PPG Industries, Inc., 201 N.J. Super. 558, 564 (App. Div. l985), may be understood as discussions

of a burden of production rather than persuasion. So construed they clearly conform to Brown v.

U.S. Stove, 98 N.J. 155 (1984), and prior law. See Fabian v. Minster Mach. Co., Inc ., 258 N.J.

Super. 261 at 277, footnote 5 and Johansen v. Mikita USA Inc., 128 N.J. 86 (l992).

destroyed the causal connection between the failure to warn and the accident. If it

did, then the failure to warn/instruct was not a proximate cause of the accident.

If [Plaintiff] has proven each element by a prepo nderance of the credible

evidence, then you must find for [Plaintiff].

If, on the other hand, [Plaintiff] has failed to prove any of the elements, then

you must find for the defendant.

[When there is a jury question dealing with defendant’s affirmative

defense or contributory/comparative negligence, the next three questions

are applicable.]

7. Was the plaintiff negligent?15

[Defendant] contends that [Plaintiff] was at fault for the happening of the

accident. [Briefly describe contention.]

To win on this defense, [Defendant] must prove that [Plaintiff] voluntarily and

reasonably proceeded to encounter a known danger and that [Plaintiff’s] action was

a proximate cause of the accident. The failure of [Plaintiff] to discover inadequate

warnings or instructions or to guard against the possibility of inadequate warnings

15 This defense is not applicable to workplace injuries where the plaintiff, a worker, has performed

a task reasonably assumed to be part of the assigned duties. Ramos v. Silent Hoist and Crane Co.,

256 N.J. Super. 467 (App. Div. l992) at 478; Suter, supra, 81 N.J. at 167-168; Tirrell v. Navistar,

Int’l., 248 N.J. Super. at 401-402. In other than a workplace setting, in a product liability case,

plaintiff’s comparative fault is limited to unreasonably and intentionally proceeding in the face of

a known danger. Cepeda v. Cumberland Engineering Company, Inc., supra, 76 N.J. at l86.

or instructions is not a defense. Rather, to win on this defense, [Defendant] must

prove that [Plaintiff] had actual knowledge of the particular danger presented by the

[Product] and that [Plaintiff] knowingly and voluntarily encountered the risk.

8. Was plaintiff’s negligence a proximate cause of the injury?

[See Chapter 6 which deals with Proximate Cause.]

9. Comparative Fault; Apportionment of Fault; Ultimate Outcome.

If plaintiff and defendant both are found to be at fault which is a proximate

cause of the accident/injury, the jury must compare their fault in terms of

percentages. [See Model Civil Charge 7.31.]