The Anniversary of New Jersey’s Adoption of the “Heeding Presumption” in Failure to Warn Cases

On this date in 1993, the Supreme Court decided Coffman v. Keene Corp., 133 N.J. 581 (1993). This was a case brought by an asbestos worker. As Justice Handler, writing for a unanimous Court, said, “[p]laintiff claimed that defendant had violated its duty to warn consumers of the health hazards associated with asbestos products. Defendant took the position that the absence of such a warning did not proximately contribute to plaintiff’s injuries because there was no evidence proffered that plaintiff would have followed such a warning, and therefore no proof that the failure to warn had contributed to plaintiff’s injuries.” The trial judge instructed the jury to presume that, had defendant given a warning, plaintiff would have followed it. That enabled plaintiff to prevail at trial, since defendant offered no contrary evidence.

The Appellate Division affirmed on defendant’s appeal, and this case, and a companion case decided that same day, Theer v. Philip Carey Co., 133 N.J. 610 (1993), reached the Supreme Court. As Justice Handler phrased it, the issue presented was “whether, in a strict liability failure-to-warn case, we should recognize a rebuttable presumption that had a warning been provided by the manufacturer, the plaintiff would have heeded that warning by acting to minimize the risk of injury, and whether that presumption, if unrebutted, may constitute proof that a defendant’s failure to warn contributed to the plaintiff’s injuries.” The Court answered both components of that question “yes.”

The Appellate Division had found support for such a “heeding presumption” in Campos v. Firestone Tire & Rubber Co., 98 N.J. 198 (1984). Justice Handler agreed with defendant’s argument that, in fact, Campos “did not establish the use of a heeding presumption in failure-to-warn cases.”

The Appellate Division also relied on comment j to section 402A of the Restatement (Second) of Torts. “Referring to comment j, the Appellate Division stated that if an adequate warning exists, a product is no longer considered defective, because when a manufacturer provides a warning, ‘the seller may reasonably assume that it will be read and heeded.’ The Appellate Division concluded that because a manufacturer or seller would benefit when a warning was provided, ‘a logical corollary of Comment j is that the buyer or user should benefit where a warning is not given.’ Consequently, ‘if a seller or manufacturer is entitled to a presumption that an adequate warning will be read and heeded, plaintiff should be entitled to the same presumption when no warning is given'” (citations omitted).

Accepting defendant’s argument regarding that Restatement comment, the Court acknowledged that, in fact, “the heeding presumption is not firmly based on empirical evidence. It is not therefore a ‘natural’ or ‘logical’ presumption.” But Justice Handler noted that, despite that, “the creation of a presumption can be grounded in public policy.” He observed that the Court had “often adopted or used presumptions in [the product liability] context in order to advance our goals of fostering greater product safety and enabling victims of unsafe commercial products to obtain fair redress.”

Citing an Indiana case, Justice Handler said that “[t]he heeding presumption thus serves to reinforce the basic duty to warn—to encourage manufacturers to produce safer products, and to alert users of the hazards arising from the use of those products through effective warnings. The duty to warn exists not only to protect and alert product users but to encourage manufacturers and industries, which benefit from placing products into the stream of commerce, to remain apprised of the hazards posed by a product. The use of the heeding presumption provides a powerful incentive for manufacturers to abide by their duty to provide adequate warnings.” Justice Handler also cited “[a] great many jurisdictions” that had adopted the heeding presumption, whether based on comment j to the Restatement section or without reliance on that comment.

The Court rebuffed defendant’s argument that adopting the heeding presumption was unfair and that the presumption could not realistically be rebutted. “Unfortunately, there are examples of employers who fail to take reasonable measures to assure the safety and health of their employees in the face of warnings. Thus, in a given case, the defendant may be able to establish that the employer’s conduct, not the failure to warn, was the cause in fact of the injuries attributable to the harmful product. An employer’s conduct, in either thwarting effective dissemination of a warning or intentionally preventing employees from heeding a warning, may be a subsequent supervening cause of an employee’s injury that will serve to break the chain of causation between manufacturer and employee. Thus, if an employer’s subsequent course of misconduct is an independent cause of an employee’s injury, the absence of a warning itself may have too remote a causal connection to the injury” (citations omitted).

Accordingly, the Court held that “to overcome the heeding presumption in a failure-to-warn case involving a product used in the workplace, the manufacturer must prove that had an adequate warning been provided, the plaintiff-employee with meaningful choice would not have heeded the warning. Alternatively, to overcome the heeding presumption, the manufacturer must show that had an adequate warning been provided, the employer itself would not have heeded the warning by taking reasonable precautions for the safety of its employees and would not have allowed its employees to take measures to avoid or minimize the harm from their use or exposure to the dangerous product.” The Court affirmed the rulings of the courts below in favor of plaintiff.

Twenty eight years after Coffman, the heeding presumption remains a fixture of New Jersey law. Coffman itself has been cited, for various principles, hundreds of times.