Tanenbaum Keale LLP associate Timothy Freeman recently authored a Law360 Expert Analysis Article regarding post-sale duties to warn and a recent decision by the Court of Appeals of Washington in a case involving an amphibious “Duck” vehicle accident.

In West v. Ride the Ducks Intl., the plaintiffs were injured while riding on an amphibious “Stretch Duck” vehicle that collided with a charter bus when the front axle housing fractured. There were several prior similar incidents and the court held that the manufacturer might have had a post-sale duty to warn that encompassed the “Duck” vehicle passengers, as well as the owner of the vehicle.

The West decision highlights the challenges that manufacturers face when dealing with post-sale duty to warn claims, including the determination as to when such a duty is triggered and how to satisfy it when the owners and users of the product may not be identifiable or able to take any meaningful action in response.

“The West decision is significant because it suggests that the post-sale duty to warn may encompass individual end users in addition to owners and customers, which would place a significant burden on manufacturers,” Freeman wrote. “Moreover, the ‘reasonable manufacturer’ standard articulated by the West court will often create a jury question.

“This, of course, increases manufacturers’ exposure when viable post-sale duty to warn claims are present because dispositive motion practice will be unlikely to succeed.”

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