by Jes­si­ca Christy1

Plain­tiffs who allege injury from a defec­tive prod­uct warn­ing face unique hur­dles in prov­ing cau­sa­tion. While oth­er types of prod­uct defect claims focus on the func­tion­ing of the prod­uct in ques­tion, fail­ure-to-warn claims raise ques­tions about a plaintiff’s own, hypo­thet­i­cal con­duct: how would the plain­tiff have used the prod­uct if an ade­quate warn­ing had been pro­vid­ed? The plaintiff’s tra­di­tion­al bur­dens of pro­duc­tion and per­sua­sion would bar recov­ery in many fail­ure-to-warn cas­es, since the only such evi­dence avail­able is often the plaintiff’s own “spec­u­la­tive and self-serv­ing” tes­ti­mo­ny that they would have read and act­ed in accor­dance with an ade­quate warn­ing.2

To deal with this issue, many courts have rec­og­nized the “heed­ing pre­sump­tion,” a rebut­table pre­sump­tion of cau­sa­tion in strict lia­bil­i­ty warn­ing defect claims. Under this pre­sump­tion, if the plain­tiff can prove that the warn­ing was defec­tive, then the bur­den shifts to the defen­dant to prove that the defect did not cause the plaintiff’s injury. Pro­po­nents argue that the pre­sump­tion is nec­es­sary to enforce man­u­fac­tur­ers’ duty to warn because it pro­vides for the com­pen­sa­tion of injured plain­tiffs and incen­tivizes man­u­fac­tur­ers to present rea­son­able safe­ty infor­ma­tion.3 On the oth­er hand, some courts and schol­ars argue that the pre­sump­tion has harm­ful unin­tend­ed con­se­quences because it 1) under­mines con­sumer safe­ty by per­mit­ting man­u­fac­tur­ers to pro­vide exces­sive warn­ings in lieu of safe prod­uct design;4 and 2) impos­es exces­sive lia­bil­i­ty on man­u­fac­tur­ers.5 Both sides of the debate have com­pelling pol­i­cy rea­sons for either embrac­ing or reject­ing the pre­sump­tion of causation.

This Con­tri­bu­tion argues that the heed­ing pre­sump­tion is an appro­pri­ate means for courts to enforce strict lia­bil­i­ty duty to warn. The pre­sump­tion cre­ates prop­er incen­tives for man­u­fac­tur­ers to rea­son­ably warn and pro­tect con­sumers, and the pol­i­cy ratio­nales for reject­ing it incor­rect­ly con­flate unre­lat­ed ele­ments of a strict prod­ucts lia­bil­i­ty case.


The heed­ing pre­sump­tion has its ori­gins in the Restate­ment (Sec­ond) of Torts sec­tion 402A com­ment j: “Where warn­ing is giv­en, the sell­er may rea­son­ably assume that it will be read and heed­ed; and a prod­uct bear­ing such a warn­ing, which is safe for use if it is fol­lowed, is not in defec­tive con­di­tion, nor is it unrea­son­ably dan­ger­ous.”6 A sig­nif­i­cant num­ber of courts have derived from this com­ment the corol­lary rebut­table pre­sump­tion that where a warn­ing is not giv­en, the factfind­er may rea­son­ably assume that it would have been read and heed­ed had it been pro­vid­ed.7 Courts give two relat­ed ratio­nales for the presumption’s appli­ca­tion. First, the pre­sump­tion makes man­u­fac­tur­ers’ duty to warn enforce­able by reliev­ing plain­tiffs of their poten­tial­ly “impos­si­ble bur­den” of con­vinc­ing jurors that an ade­quate warn­ing would have pre­vent­ed their injury.8 Sec­ond, it coun­ter­acts man­u­fac­tur­ers’ eco­nom­ic incen­tives to con­ceal the poten­tial haz­ards of their prod­ucts.9 For courts that rec­og­nize the pre­sump­tion, these pol­i­cy con­cerns com­bined with the lan­guage of com­ment j jus­ti­fy shift­ing the tra­di­tion­al bur­dens of pro­duc­tion and per­sua­sion on the ele­ment of causation.

Oth­er courts and schol­ars fear that the pre­sump­tion will under­mine con­sumer wel­fare by per­mit­ting man­u­fac­tur­ers to sub­sti­tute warn­ings for safe prod­uct design,10 and by forc­ing respon­si­ble prod­uct users to sub­si­dize care­less ones by impos­ing near-absolute lia­bil­i­ty on man­u­fac­tur­ers, who would then pass on the increased costs to con­sumers as a whole.11 How­ev­er, both of these con­cerns mis­con­strue the Restate­ment (Sec­ond) of Torts. The for­mer con­cern con­fus­es the duty to design rea­son­ably safe prod­ucts with the duty to pro­vide rea­son­able warn­ings, while the lat­ter con­cern con­fus­es the ques­tion of defect with the ques­tion of cau­sa­tion. The prop­er response to these fears is not to do away with the heed­ing pre­sump­tion, but to treat each ele­ment of a warn­ing defect claim with appro­pri­ate ana­lyt­i­cal rigor.


When a leg­is­la­ture choos­es to rec­og­nize a duty, it intends for that duty to be enforced. How­ev­er, under a plaintiff’s stan­dard bur­den of prov­ing cau­sa­tion, indi­vid­u­als who were injured by prod­ucts with legal­ly defec­tive warn­ings may be unable to recov­er, since the only proof they can offer may be their own tes­ti­mo­ny about how they would have respond­ed to a rea­son­able warn­ing. This kind of tes­ti­mo­ny is inher­ent­ly unre­li­able: any injured con­sumer suing a man­u­fac­tur­er for fail­ure to warn will nat­u­ral­ly claim that they would have read applic­a­ble warn­ings and heed­ed them had they been pro­vid­ed, and so it is exceed­ing­ly dif­fi­cult for jurors to deter­mine when such tes­ti­mo­ny should be trust­ed.12 If jurors faith­ful­ly apply the pre­pon­der­ance of the evi­dence stan­dard, then they are unlike­ly to con­clude that the injury would not have occurred if the warn­ing had been in place in all but the most egre­gious of cas­es. This will leave injured plain­tiffs severe­ly under­com­pen­sat­ed, in con­tra­ven­tion of a legislature’s appar­ent will when it decid­ed to impose a strict lia­bil­i­ty duty to warn on man­u­fac­tur­ers. The heed­ing pre­sump­tion neat­ly solves this issue by direct­ing that the impos­si­bil­i­ty of prov­ing a hypo­thet­i­cal should weigh in the plaintiff’s favor. Unless the defen­dant can present evi­dence that the plain­tiff would not have read or fol­lowed an ade­quate warn­ing, the court pre­sumes that the warn­ing defect caused the improp­er use behind the injury.13

Hold­ing man­u­fac­tur­ers liable for plac­ing prod­ucts with defec­tive warn­ings on the mar­ket does more than just com­pen­sate injured plain­tiffs; it also helps pro­tect the pub­lic as a whole. With­out an enforce­able duty to warn, sell­ers may be tempt­ed to under-inform buy­ers about the dan­gers their goods pose, since con­sumers are like­ly to find obvi­ous­ly haz­ardous prod­ucts less desir­able.14 Mak­ing man­u­fac­tur­ers liable for absent or inef­fec­tive warn­ings ensures that they will ful­ly instruct the pub­lic about their prod­ucts’ risks. This, in turn, enables con­sumers to make informed safe­ty deci­sions about if and how they use poten­tial­ly haz­ardous goods.15 Admit­ted­ly, a sig­nif­i­cant num­ber of con­sumers fail to read and/or fol­low safe­ty infor­ma­tion16—but that is in itself a safe­ty deci­sion. Con­sumers can­not make the choice to either heed or ignore a product’s warn­ings if no warn­ings are presented.

In spite of the above con­sumer safe­ty ratio­nales, some courts and schol­ars have reject­ed the heed­ing pre­sump­tion on the grounds that it has inad­ver­tent con­se­quences that leave con­sumers less safe. For exam­ple, Pro­fes­sor Howard Latin argues that com­ment j and any doc­trines derived from it should be dis­avowed because its plain lan­guage arguably allows man­u­fac­tur­ers to sub­sti­tute cheap addi­tion­al warn­ings for expen­sive prod­uct redesigns.17 If, as per the com­ment, “a prod­uct bear­ing . . . a warn­ing, which is safe for use if fol­lowed, is not in defec­tive con­di­tion, nor is it unrea­son­ably dan­ger­ous,” then it is con­ceiv­able that courts would per­mit man­u­fac­tur­ers to “paper over” design defects by alert­ing cus­tomers to the con­di­tion with a warn­ing label.18 How­ev­er, there is vir­tu­al­ly no evi­dence that this con­cern is jus­ti­fied. The three pri­ma­ry cas­es that Pro­fes­sor Latin cites for the propo­si­tion did not set off a wave of courts allow­ing man­u­fac­tur­ers to choose warn­ings over rea­son­ably safe design—and one of those cas­es had already been over­ruled entire­ly by the time his arti­cle was pub­lished.19 Since then, courts have broad­ly reject­ed the notion that a man­u­fac­tur­er can “mere­ly slap a warn­ing onto its dan­ger­ous prod­uct, and absolve itself of any oblig­a­tion to do more.”20 The duty to warn of a product’s inher­ent dan­gers and instruct users in its safe use in no way under­mines man­u­fac­tur­ers’ respon­si­bil­i­ty to place rea­son­ably safe prod­ucts into the stream of com­merce; the two duties oper­ate inde­pen­dent­ly of each oth­er.21

More­over, Pro­fes­sor Latin’s con­cern ignores the fact that some prod­ucts can­not be rea­son­ably redesigned, in which case con­sumer pro­tec­tion depends on a robust duty to warn. For instance, the Neva­da Supreme Court echoed Latin’s argu­ment in its rejec­tion of the heed­ing pre­sump­tion in Rivera v. Philip Mor­ris, Inc.22 When asked whether Neva­da law demand­ed the recog­ni­tion of the heed­ing pre­sump­tion, the court reject­ed the pre­sump­tion in large part because the jus­tices con­sid­ered it “bet­ter pub­lic pol­i­cy not to encour­age a reliance on warn­ings because this will help ensure that man­u­fac­tur­ers con­tin­ue to strive to make safe prod­ucts.”23 How­ev­er, the very prod­uct at issue in that case under­mined the court’s ratio­nale: Rivera’s wrong­ful death claim per­tained to a fail­ure to warn of the inher­ent dan­gers of cig­a­rettes.24 There is no known way to man­u­fac­ture a non-car­cino­genic tobac­co prod­uct, and so it seems improb­a­ble that man­u­fac­tur­ers like Philip Mor­ris would take the heed­ing pre­sump­tion as license to sub­sti­tute warn­ings for safe design. It is the unavoid­able dan­ger of the prod­uct that under­scores the need for robust enforce­ment of warn­ings law.25 A life-sav­ing med­i­cine may car­ry an unavoid­able risk of harm­ful side effects, a pow­er­ful machine may be dead­ly if used incor­rect­ly, and no form of bleach can be safe­ly mixed with an ammo­nia-based clean­ing prod­uct. Such prod­ucts are not more dan­ger­ous than con­sumers expect and are there­fore not defec­tive, yet they still car­ry enor­mous risks. Con­sumers have the right to be instruct­ed about their poten­tial haz­ards and prop­er oper­a­tions. Such warn­ings save limbs and lives.

Oth­ers have argued that the heed­ing pre­sump­tion threat­ens to sub­ject man­u­fac­tur­ers to absolute lia­bil­i­ty because it allows plain­tiffs to recov­er for any per­ceived short­fall in a product’s warn­ing.26 This would be bad for con­sumers as a class because it would be expen­sive and unjust to force respon­si­ble prod­uct users to pay for every injury suf­fered by care­less users. How­ev­er, this con­cern is best addressed on the ele­ment of defect, not the ele­ment of cau­sa­tion. Before a plain­tiff can ben­e­fit from the heed­ing pre­sump­tion, they must first prove that the warn­ing in ques­tion was legal­ly defec­tive.27 Rea­son­able­ness is the touch­stone of the defect analy­sis.28 As such, a plaintiff’s mere alle­ga­tion that a prod­uct should have con­tained a more com­pre­hen­sive, more promi­nent, or more force­ful warn­ing is insuf­fi­cient to estab­lish defect. Injured plain­tiffs may try to claim that it was unrea­son­able for a man­u­fac­tur­er to with­hold vir­tu­al­ly any pro­posed warn­ing, since the ben­e­fit of dis­clo­sure would have vast­ly out­weighed the cost of the ink and paper to print it.29 How­ev­er, the full cost of a warn­ing is far more than the expense of a phys­i­cal label. The true mea­sure of rea­son­able­ness comes from infor­ma­tion costs: each warn­ing that is pre­sent­ed risks dilut­ing the effect of oth­ers. Unnec­es­sary warn­ings make con­sumers less safe, not more.30 It may be rea­son­able for man­u­fac­tur­ers to with­hold infor­ma­tion about cer­tain risks, since seem­ing­ly absurd warn­ings about unlike­ly or insult­ing­ly obvi­ous dan­gers may lead cus­tomers to ignore warn­ings about more salient risks because they believe that all of the product’s safe­ty infor­ma­tion is just “for the lawyers.”31

Addi­tion­al­ly, man­u­fac­tur­ers can make rea­soned deci­sions about how to present infor­ma­tion. Not only the con­tent, but also the design and con­spic­u­ous­ness of a warn­ing are rel­e­vant to its ade­qua­cy. It may be entire­ly in the inter­est of cus­tomer safe­ty for a sell­er to, for instance, draw spe­cial atten­tion to seri­ous haz­ards while print­ing infor­ma­tion about more remote risks in a users’ guide; if every­thing is empha­sized, then effec­tive­ly noth­ing is empha­sized.32 Accord­ing­ly, courts can pro­tect against the dan­gers of absolute lia­bil­i­ty by prop­er­ly instruct­ing juries on the rea­son­able­ness test for warn­ing defects. Absolute lia­bil­i­ty for warn­ing-relat­ed injuries would hurt con­sumers, and the pro­lif­er­a­tion of use­less warn­ings as man­u­fac­tur­ers try to pro­tect them­selves from this absolute lia­bil­i­ty is a valid safe­ty con­cern. How­ev­er, these issues are prop­er­ly addressed through a rig­or­ous defect analysis—not by mak­ing recov­ery pro­hib­i­tive­ly dif­fi­cult on the issue of causation.


The pol­i­cy rea­sons for reject­ing the heed­ing pre­sump­tion ulti­mate­ly ring hol­low, for they all stem from doc­tri­nal con­fu­sion unre­lat­ed to the ques­tion of cau­sa­tion. If a state leg­is­la­ture enact­ed strict lia­bil­i­ty for fail­ure to warn, then the duty, and the con­sumer safe­ty con­cerns which moti­vate that duty, are best served by ensur­ing that plain­tiffs will not be forced to prove the impos­si­ble. The heed­ing pre­sump­tion ensures that man­u­fac­tur­ers’ duty to warn will be enforced, plain­tiffs with valid claims will be com­pen­sat­ed, and the pub­lic will be prop­er­ly informed.

1. Jes­si­ca Christy is a J.D. Can­di­date (2021) at New York Uni­ver­si­ty School of Law.  This piece is a com­men­tary on the 2020 August A. Rendigs, Jr. Nation­al Prod­ucts Lia­bil­i­ty Moot Court Com­pe­ti­tion.  The issue in the prob­lem dealt with whether a state’s strict prod­ucts lia­bil­i­ty fail­ure-to-warn law based on the Restate­ment (Sec­ond) of Torts demand­ed that the state rec­og­nize the heed­ing presumption.

2. Reyes v. Wyeth Lab’ys, 498 F.2d 1264, 1281 (5th Cir. 1974).

3. See, e.g., Kevin J. O’Connor, Com­ment: New Jersey’s Heed­ing Pre­sump­tion in Fail­ure to Warn Prod­uct Lia­bil­i­ty Actions: Coff­man v. Keene Corp. and Theer v. Philip Carey Co., 47 Rut­gers L. Rev. 343, 371–74 (1994) (review­ing New Jer­sey courts’ ratio­nales for adopt­ing the presumption).

4. See Howard Latin, “Good” Warn­ings, Bad Prod­ucts, and Cog­ni­tive Lim­i­ta­tions, 41 UCLA. L. Rev. 1193, 1293 (1994) (“The com­ment j pre­sump­tion encour­ages pro­duc­ers to sub­sti­tute warn­ings for safer prod­uct designs and, in con­junc­tion with fail­ure-to-warn doc­trines, the pre­sump­tion also induces man­u­fac­tur­ers to pro­vide . . . often exces­sive dis­clo­sure at the cost of sac­ri­fic­ing clarity . . . .”).

5. See James A. Hen­der­son, Jr. & Aaron D. Twer­s­ki, Doc­tri­nal Col­lapse in Prod­ucts Lia­bil­i­ty: The Emp­ty Shell of Fail­ure to Warn, 65 N.Y.U. L. Rev. 265, (1990) (argu­ing that the pre­sump­tion makes it “exces­sive­ly easy” for a plain­tiff to win a warn­ing defect case, in large part because it is so dif­fi­cult to rebut).

6. Restate­ment (Sec­ond) of Torts § 402A cmt. j (Am. Law Inst. 1965).

7. See, e.g., Tech. Chem. Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972). State courts in approx­i­mate­ly nine­teen states have rec­og­nized this rebut­table pre­sump­tion of cau­sa­tion in warn­ing defect claims, although in four of those states, the leg­is­la­ture sub­se­quent­ly abol­ished or lim­it­ed the pre­sump­tion. Fed­er­al courts in an addi­tion­al eleven states have pre­dict­ed that state courts would apply the pre­sump­tion if pre­sent­ed with the issue. James M. Beck, Who Heeds the Heed­ing Pre­sump­tion, Drug & Device L. (Nov. 7, 2014),

8. Payne v. Soft Sheen Prods., 486 A.2d 712, 725 (D.C. Cir. 1985).

9. See Nis­sen Tram­po­line Co. v. Terre Haute First Nat’l Bank, 332 N.E.2d 820, 827 (Ind. Ct. App. 1975) (com­ment­ing that ade­quate warn­ings are like­ly to “impair the mar­ketabil­i­ty of the prod­uct”), rev’d on oth­er grounds, 358 N.E.2d 974 (Ind. 1976).

10. Latin, supra note 4, at 1293.

11. See Aaron D. Twer­s­ki & Neil B. Cohen, Resolv­ing the Dilem­ma of Non­jus­ti­cia­ble Cau­sa­tion in Fail­ure-to-Warn Lit­i­ga­tion, 84 S. Cal. L. Rev. 125, 139 (2010) (warn­ing that the heed­ing pre­sump­tion results in “over­com­pen­sa­tion and overdeterrence”).

12. See Coff­man v. Keene Corp., 628 A.2d 710, 719 (N.J. 1993) (rea­son­ing that, when jurors are faced with “unre­li­able or self-serv­ing” tes­ti­mo­ny, they will need to turn to “extra­ne­ous, spec­u­la­tive con­sid­er­a­tions” to eval­u­ate it). Such extra­ne­ous con­sid­er­a­tions will like­ly include inap­pro­pri­ate fac­tors such as the plaintiff’s edu­ca­tion, socio-eco­nom­ic class, race, and/or coun­try of ori­gin. See, e.g., Sheri Lynn John­son, The Col­or of Truth: Race and the Assess­ment of Cred­i­bil­i­ty, 1 Mich. J. Race & L. 261, 316–17 (1996) (dis­cussing how race affects jurors’ cred­i­bil­i­ty deter­mi­na­tions). Of course, juries must always make cred­i­bil­i­ty deter­mi­na­tions, but when assump­tions about a plaintiff’s cred­i­bil­i­ty and per­son­al respon­si­bil­i­ty are vir­tu­al­ly all that the jury can con­sid­er when eval­u­at­ing the ele­ment of cau­sa­tion, con­cerns about jurors’ innate bias­es are par­tic­u­lar­ly pressing.

13. See Seley v. G.D. Sear­le & Co., 423 N.E.2d 831, 838 (Ohio 1981) (stat­ing that a plaintiff’s causal bur­den is sat­is­fied if defen­dant does not pro­duce rebut­ting evidence).

14. See Nis­sen Tram­po­line Co., supra note 9.

15. See Michael A. Pit­tenger, Note, Refor­mu­lat­ing the Strict Lia­bil­i­ty Fail­ure to Warn, 49 Wash. & Lee L. Rev. 1509, 1539 (1992) (fram­ing the duty to warn as a mat­ter of mar­ket hon­esty and informed con­sumer choice).

16. See Twer­s­ki & Cohen supra note 11, at 135 (com­pil­ing stud­ies that indi­cate that approx­i­mate­ly half of con­sumers fail to read warn­ings, while per­haps a third fail to com­ply with them).

17. Latin supra note 4, at 1195–97 (1994) (cit­ing Sky­hook Corp. v. Jasper, 560 P.2d 934, 936 (N.M. 1977), over­ruled by Klopp v. Wack­en­hut Corp., 824 P.2d 297 (N.M. 1992); Sherk v. Daisy-Hed­don, 450 A.2d 615, 618–19 (Pa. 1982); Dugan v. Sears, Roe­buck & Co., 454 N.E.2d 64, 65–67 (Ill. App. Ct. 1983)).

18. Restate­ment (Sec­ond) of Torts § 402A cmt. j.

19. See id. at 1195–96 nn.3–6 and accom­pa­ny­ing text.

20. Rogers v. Inger­soll-Rand Co., 144 F.3d 841, 844 (D.C. Cir. 1998).

21. See, e.g., Emery v. Fed­er­at­ed Foods, 863 P.2d 426, 431–32 (Mont. 1993) (hold­ing that, while marsh­mal­lows are not inher­ent­ly defec­tive prod­ucts, it is appro­pri­ate to let a jury decide if they require a warn­ing about the chok­ing haz­ard they pose to young children).

22. 209 P.3d 271, 276–77 (Nev. 2009).

23. Id. at 277.

24. Id. at 273.

25. See Ken­neth Ian Weiss­man, A “Com­ment J” Par­ry to Howard Latin’s “Good” Warn­ings, Bad Prod­ucts, and Cog­ni­tive Lim­i­ta­tions, 70 St. John’s L. Rev. 629, 629–30 (1996) (“[S]ome social­ly ben­e­fi­cial prod­ucts are inher­ent­ly unsafe or can­not be made acci­dent-proof with­out impos­ing pro­hib­i­tive costs.”).

26. See Twer­s­ki & Cohen, supra note 11, at 139 (“The warn­ing pre­sump­tion, though for­mal­ly denom­i­nat­ed as rebut­table, was for all prac­ti­cal pur­pos­es absolute. Thus, by the seem­ing­ly dry pro­ce­dur­al mech­a­nism of bur­den shift­ing, the court trans­formed tra­di­tion­al tort prin­ci­ples, which, as we have demon­strat­ed, may result in under­en­force­ment and under­de­ter­rence, into an alter­na­tive regime with oppo­site results. Just as a regime of under­en­force­ment and under­de­ter­rence is not accept­able, a regime that results in over­com­pen­sa­tion and overde­ter­rence is sim­i­lar­ly unjust.”).

27. See, e.g., Seley, supra note 13 at 836 (describ­ing the ques­tion of whether a warn­ing was ade­quate as the “ini­tial[]” issue in a fail­ure-to-warn case).

28. See, e.g., Jar­rell v. Mon­san­to Co., 528 N.E.2d 1158, 1161 (Ind. Ct. App. 1988) (“In Indi­ana, the issue of the ade­qua­cy of warn­ings in a strict lia­bil­i­ty case is gov­erned by the same con­cepts as in neg­li­gence.” (cita­tion omitted)).

29. See, e.g., Moran v. Faberge, Inc., 332 A.2d 11, 15 (Md. 1975) (observ­ing that the min­i­mal cost of adding a label to a prod­uct “will almost always weigh in favor of an oblig­a­tion to warn”).

30. See, e.g., Cot­ton v. Buck­eye Gas Prods., 840 F.2d 935, 938 (D.C. Cir. 1988) (“The pri­ma­ry cost is, in fact, the increase in time and effort required for the user to grasp the mes­sage. The inclu­sion of each extra item dilutes the punch of every oth­er item.”).

31. See Latin, supra note 4, at 1247 (“As warn­ings pro­lif­er­ate in num­ber and length, con­sumers may come to believe that some (or many) are includ­ed more to pro­tect man­u­fac­tur­ers against poten­tial lia­bil­i­ty than to inform users of sig­nif­i­cant dan­gers.”). How­ev­er, it is wide­ly accept­ed doc­trine that man­u­fac­tur­ers do not need to warn for risks that are com­mon­ly known in the com­mu­ni­ty, that are obvi­ous, or that are unfore­see­able accord­ing to the industry’s best avail­able knowl­edge. See, e.g., Phelps v. Sher­wood Med. Indus., 836 F.2d 296, 303 (7th Cir. 1987) (cita­tion omit­ted) (stat­ing that there is no need to warn for obvi­ous or unfore­see­able dan­gers); Restate­ment (Sec­ond) of Torts § 402A cmt. j (dis­claim­ing a duty to warn of gen­er­al­ly rec­og­nized dan­gers, such as the risk of get­ting intox­i­cat­ed from alco­hol). But see Cam­pos v. Fire­stone Tire & Rub­ber Co., 485 A.2d 305, 309 (N.J. 1984) (crit­i­ciz­ing “obvi­ous dan­ger rule” as bar to recov­ery); Besha­da v. Johns-Manville Prods. Corp., 447 A.2d 539, 544 (N.J. 1982) (hold­ing asbestos man­u­fac­tur­ers liable for fail­ure to warn of risks that were sci­en­tif­i­cal­ly unknown at the time of sale).

32. See, e.g., Scott v. Black & Deck­er, Inc., 717 F.2d 251, 254 (5th Cir. 1983) (reject­ing plaintiff’s con­tention that a spe­cif­ic warn­ing should have been print­ed direct­ly on an elec­tric saw because “[t]o require that one explic­it warn­ing be placed on the saw would be to require all twenty”).