What Will Trigger the Duty to Warn?
Post-Sale Accidents Post-sale accidents may trigger a manufacturer’s post-sale duty to warn. The duty arises when a manufacturer receives sufficient notice, measured by the degree of danger posed by the product and the number of instances reported (see Cover, at 275). The analysis is, by definition, heavily fact dependent (id.). New York courts appear unwilling to impose a post-sale duty to warn if the accidents occur infrequently and are not likely to cause substantial harm.2 For example, in Haran v. Union Carbide Corporation, 68 NY 2d 710 (1986), the plaintiff alleged she was injured when ethyl alcohol fumes from insect repellent spray ignited upon a discharge of static electricity from a television set. Relying on Cover, the court excluded evidence as it related to plaintiff’s claim for a continuing duty to warn (id., at 712). In particular, it excluded evidence that the manufacturer changed the warning label after manufacture and sale but prior to the accident, because there was no
