I recently returned to work from maternity leave. (For those of you interested: boy, 8 lbs., 5 oz., doing very well, thank you). Leading up to the birth of the baby, we were in a frantic push to finish the house renovation we started after I became pregnant. (Can you say nesting on overdrive?) Between the renovation and the baby, I have been dealing with more warning labels than you can shake a stick at. (WARNING! Shaking a stick at people could lead to injuries to you or to them.)
Any parent knows there are warning labels on anything baby-related, from their pajamas (WARNING! FLAMMABLE!) to their bath seats (WARNING! DROWNING HAZARD!) to the carseat, with its bright yellow ADVERTENCIA label interrupting the cuddly, cute polka dot fabric. Anyone who has done a home renovation knows that warning labels are stubbornly affixed to everything you install in your house, from the screens on the new windows (WARNING! Screen will not prevent you from falling out the window!) to the hydrotherapy bathtub (WARNING! DROWNING HAZARD!). Months later, I am still finding – and attempting to peel away – warning stickers.
As if juggling a new baby, a pre-schooler, a full time job, and a husband with a full time job wasn’t enough stress, I have the added stress of being a new mom/products lawyer. The other day I started to wonder if I’d read all of the warning labels and reviewed all of the user manuals, knowing that if I am ever deposed on the [mal]function on one of these baby or household items, I would be asked that very question.
All of this crazy thinking led me back to a point I come to often – wondering if having too many warnings on products in the world dilutes the truly important warnings for hazards that are not obvious to the normal consumer, and causes us to totally abandon (or mistrust) our own common sense. There is a place for this argument in our products liability discourse – the “open and obvious” defense. This defense does not absolve defendants of liability often enough against plaintiffs who shut off their brains or at least beat their common sense genes into submission.
I ran across one of the “your e-cards” the other day that sums up the reaction I sometimes have when I review the facts of products cases, mine or someone else’s. It’s probably a bit over-the-top in the cynicism department, but I believe that it also leaves some room for optimism – that we can restore common sense to its rightful place in the world. Of course, when this post is entered into the record as Exhibit 1 at my deposition, I will absolutely deny having expressed any of these opinions, and claim that my blog password was hacked.