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Restatement (Third) of Torts: Phys. & Emot. Harm 18 (2010)

Restatement of the Law - Torts
Database updated June 2014
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
Chapter 3. The Negligence Doctrine and Negligence Liability
18 Negligent Failure to Warn
Comment:
Reporters' Note
Case Citations - by Jurisdiction
(a) A defendant whose conduct creates a risk of physical or emotional harm can fail to
exercise reasonable care by failing to warn of the danger if:
(1) the defendant knows or has reason to know: (a) of that risk; and (b) that those
encountering the risk will be unaware of it; and
(2) a warning might be effective in reducing the risk of harm.
(b) Even if the defendant adequately warns of the risk that the defendant's conduct
creates, the defendant can fail to exercise reasonable care by failing to adopt further
precautions to protect against the risk if it is foreseeable that despite the warning some
risk of harm remains.

Comment:
a. The wide range of warning circumstances. A failure to warn of the risks created by the actor's
conduct can be negligence on the part of the actor under 3; this Section discusses how 3 applies
to warning claims. A warning can often be a useful device for reducing the risk of harm occasioned
by the defendant's conduct. The range of defendant conduct that can give rise to the obligation
to warn is so broad as to make clear that the failure to warn is a basic form of negligence. The
company that sets up power lines can be negligent in failing to warn those who might come into
contact with them; a railroad can be negligent for failing to warn a motorist of an approaching

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train; the proprietor of a retail store can be negligent for failing to warn of dangerous features
in its operations. Motorists can be negligent for failing to warn that they are about to make an
unexpected driving maneuver; a motorist whose car is blocking a highway can be negligent for
failing to warn of the car's presence; a motorist who appreciates that a pedestrian on the road ahead
has not noticed the approaching car can be negligent for failing to sound the horn and thereby
warn that pedestrian. An employer can be negligent for failing to warn an employee of dangers
in job assignments; the party, other than the employer, who creates a hazard in the employee's
working area can be negligent for failing to warn the employee of that hazard. A golfer can be
negligent in failing to warn nearby golfers of an errant shot; a property owner can be negligent
in failing to warn when the structure it owns protrudes into the air in a way that may imperil
low-flying airplanes; a public agency that runs a highway system can be negligent in failing to
warn of particular features, such as very narrow bridges, low underpasses, or sharp drop-offs,
that pose unexpected dangers. A physician can be liable for the failure to warn patients of the
possible adverse complications or side effects of surgery or other recommended treatments; and the
defendant who is about to come into intimate contact with the plaintiff can be negligent for failing
to warn the plaintiff that the defendant suffers from a communicable disease. Persons supplying
products to others in a variety of circumstances can be liable for failing to warn of dangers in
the products; thus, occasional sellers can be negligent for failing to warn their buyers of product
dangers; product owners can be negligent for failing to warn persons to whom they turn over their
products for repair; and product owners can be negligent for failing to warn neighbors of dangers
in the products that the neighbors borrow from them. For the obligations of product manufacturers
and other sellers to warn of dangers posed by a product, see Restatement Third, Torts: Products
Liability 2(c), 6(d), 10, 13.
b. How warnings can be a reasonable measure for reducing risk. Armed with the information
provided by a warning, the potential victim may be able conveniently to modify conduct so as to
avoid the danger that the defendant's conduct entails. A pilot, for example, can alter the route to
avoid a protruding structure; a motorist can maneuver around a stalled vehicle; a motorist can stop
the car until the train has passed; persons can keep their hands (or their cranes) away from a power
line; motorists can reduce their speed on the highway when approaching a narrow bridge. In other
cases, responding to the warning so as to avoid risk would require the potential victim to forsake
the otherwise advantageous services the defendant is offering. Thus, having been informed of the
risks of surgery, a patient may decline to undergo surgery, or a potential victim may choose not to
enter into an intimate relationship with a person who has a communicable disease. Even if a person
chooses to accept surgery or to enter into the relationship, the warning given benefits the person
by enabling the person to make an informed choice. In some situations, a warning is desirable
because it is effective in reducing the likelihood of an accident. Yet, in other situations, a warning
is appropriate mainly because it reduces the likely severity of the injuries that such an accident

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might occasion. For example, by the time one skier is able to warn another, a collision between the
two of them may be inevitable; nevertheless, the warning may be effective in reducing the force
of the collision and hence in reducing the severity of the resulting injuries. In referring to the risk
of physical or emotional harm, 18(a) takes into account both avoiding accidents and reducing
their consequences when they occur.
In some situations, however, there is little or nothing a potential victim can do even if given a
warning. For example, if a golfer's errant shot heads in the direction of a freeway next to the golf
course, it would be pointless for the golfer to give a fore warning to motorists on the freeway;
even if motorists hear the warning, which is unlikely, they would not be able to observe the golf
ball and hence maneuver to avoid it. In situations in which a warning would not be of practical
value in reducing the risk of harm, the failure to give the warning is not negligent.
c. Causation. To justify liability in a negligent failure-to-warn case, there must be a finding of
causationa finding that the warning, if given, would have prevented the harm that resulted, such
as by any of the causal mechanisms described in Comment b. It may be that the magnitude of the
danger to which the warning relates is great and that the plaintiff would have needed to modify
conduct only slightly in order to avoid the danger. In such circumstances, it can be reasonable to
assume, even without specific evidence, that a warning, if given, would have caused such a change
in the plaintiff's behavior; but the jury is not required to make this assumption. The doctrine of
factual causation is addressed more fully in Chapter 5 of this Restatement.
d. Failures properly to instruct. Most claims of failure to warn concern merely the failure to convey
information as to the danger entailed by the defendant's activity. In a limited number of cases,
the relationship between the defendant and the plaintiff suggests that the defendant in order to
exercise reasonable care must properly instruct the plaintiff as to how to proceed safely. A large
employer, for example, can be negligent in failing to instruct an employee as to how safely to
handle a distinctive job assignment. Yet an ordinary homeowner who hires a laborer to engage
in hillside clearance on a weekend is not negligent for failing to instruct the laborer as to how to
carry dead branches down the hill.
e. Adequacy of warning. Even if a warning is provided, a defendant still can be negligent if the
warning is not adequate; if its content does not include the relevant information or if its form is not
reasonably effective in expressing this information. Inserts in products can be read by consumers in
the comfort of their homes and thus can provide some measure of detail and elaboration. However,
many other warnings must be posted in public places and quickly responded to by potential victims.
These warnings hence are properly simple and straightforward in the information they contain.
Even so, when the danger posed by the defendant's particular operations is significantly greater

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than the dangers involved in other operations of the same general sort, the defendant can be found
negligent for failing to give a fuller warning than that which is normally given. For example, when
a railroad crossing is unusually hazardous, the warning should be more emphatic than warnings
provided at ordinary highway crossings.
f. Generally appreciated dangers. A defendant can be negligent for failing to warn only if the
defendant knows or can foresee that potential victims will be unaware of the hazard. Accordingly,
there generally is no obligation to warn of a hazard that should be appreciated by persons whose
intelligence and experience are within the normal range. When the risk involved in the defendant's
conduct is encountered by many persons, it may be foreseeable that some fraction of them will be
lacking the intelligence or the experience needed to appreciate the risk. But to require warnings for
the sake of such persons would produce such a profusion of warnings as to devalue those warnings
serving a more important function.
However, even though the danger in the defendant's conduct is appreciated by most people, if
the defendant is specifically interacting with a particular personsuch as a childwhom the
defendant knows is lacking in ordinary knowledge, the defendant can be negligent for failing to
warn that person. Moreover, even if the hazard is visually obvious, if the conditions are such that
persons approaching the hazard will foreseeably be distracted, the defendant can be negligent in
failing to warn of the hazard.
g. The defendant who knows, has reason to know, or should know. Negligence in failing to warn
can most easily be found when the defendant actually knows of the relevant danger. In these cases,
the objective of the law is to induce the defendant properly to share the knowledge the defendant
already has.
In other cases, the law's objective relates to the production of knowledge as well as its sharing.
Liability can readily be imposed when the defendant has reason to know of the danger entailed by
the defendant's activitywhen the defendant actually knows facts that should lead a reasonable
person to appreciate the danger. Accordingly, the rule in this Section is expressed in terms of
dangers of which the defendant knows or has reason to know.
In certain cases, however, the defendant can be negligent for failing to warn when the law
concludes that the defendant should have known of the dangerthat the defendant should have
made a reasonable effort to acquire information about the danger. Whether the defendant has an
obligation to acquire informationfor example, to conduct inspections or engage in researchis
initially an issue of duty to be determined by the court. One important criterion is how likely it is
that inspections would in fact produce information about dangers of substantial magnitude. Other

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criteria are the status of the defendant, the relationship between the parties, and the expectations
that that relationship occasions. A company engaged in an activity that creates substantial and
distinctive dangerssuch as the transmission of electric poweroperates under an obligation to
conduct reasonable inspections of its operations. Similarly, an employer, such as a railroad, that
runs a large ongoing operation is expected to acquire the knowledge of safety problems that can
enable it to provide employees with appropriate warnings and instructions. By contrast, the owner
of a product such as a power saw has no obligation to inspect it before loaning it to a neighbor or
turning it over to another for purposes of repair.
h. Warnings and other precautions. In some instances, the defendant's activity creates a risk that,
standing on its own, is quite reasonable; in these instances, the plaintiff's only claim of negligence
may relate to the defendant's failure to warn. Frequently, however, the plaintiff who alleges the
defendant's negligence in failing to warn also alleges negligence in the defendant's failure to adopt
other precautions. In such cases, the relationship between the defendant's failure to warn and the
defendant's failure to adopt those other precautions needs to be considered.
If a proper warning is given, potential victims are in a position to modify their conduct so as
to avoid injury. In fact, if potential victims always responded to the warning in an appropriate
way, the possibility of harm might be completely eliminated. Even so, it may be foreseeable that
for a variety of reasons, including inattentiveness, some number of potential victims will fail to
react to the warning in an appropriate manner. In light of this, giving the warning foreseeably
reduces, but does not eliminate, the dangers created by the defendant's conduct. Accordingly, if
reasonable precautions are available to the defendant that would control the remaining dangers,
the defendant can properly be found negligent for failing to adopt those precautions. Moreover,
in some situations, the defendant who has given a warning has actual knowledge that the plaintiff
has not responded to the warning at the time the defendant engages in further action. For example,
a motorist may be able to see that a pedestrian in the street has not heeded the motorist's sounding
of the horn. In these circumstances, the motorist's failure to take other steps to prevent harm is
negligent. The neglect of the warning by potential victims may well be contributory negligence on
their partindeed, substantial contributory negligence; yet under the modern rule of comparative
responsibility, the victim's contributory negligence merely reduces rather than precludes the
victim's recovery.
In other cases, even if a proper warning would enable potential victims to modify their conduct
so as to avoid the danger, the defendant may be able to eliminate the danger in the first instance
by incorporating precautions that are less burdensome or on balance more reasonable than any
conduct modifications available to potential victims. In such a case, the defendant can be negligent
in not adopting those precautions; and if the defendant is originally negligent in this way, the fact

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that the defendant gives a warning of the danger does not eliminate the defendant's liability for
that negligence.

Illustration:
Illustration:
1. Paul, while moving his household goods, throws a heavy parcel out of his window
onto the street, intending it to fall into a waiting cart. In doing so, he calls out, Look out
below. He misses his target, and the parcel strikes Andrea, a pedestrian, who does not
hear the warning because her attention is directed to other matters. Despite his warning,
Paul can be found negligent for dropping the parcel.

Reporters' Note
Comment a. The wide range of warning circumstances.The Restatement Second of Torts deals
with the general obligation to warn briefly in 297(b) and indirectly in 301. The warning
obligations that negligence law places on product suppliers are dealt with in 388- 405.
Inadequate warnings are a major category of product defect in the Products Liability Restatement.
See Restatement Third, Torts: Products Liability 2(c) and Comments k-m. Given the prominence
of the doctrine of effective warning within products-liability law, it may seem surprising that the
obligation to warn has not received more scholarly attention within ordinary negligence law.
For cases on the warning obligations of electric-power companies, see Delmarva Power & Light
Co. v. Burrows, 435 A.2d 716 (Del. 1981); Levi v. Sw. La. Elec. Membership Coop., 542 So.2d
1081 (La. 1989); Black v. Pub. Serv. Elec. & Gas Co., 265 A.2d 129 (N.J. 1970); Kirton v.
Williams Elec. Coop., Inc., 265 N.W.2d 702 (N.D. 1978).
On the scope of the railroad's obligation to warn at railroad crossings, see Lopez v. S. Pac. Co., 499
F.2d 767 (10th Cir. 1974) (applying New Mexico law); Mo. Pac. R.R. Co. v. Biddle, 732 S.W.2d
473 (Ark. 1987); Pa. R.R. Co. v. Goldenbaum, 269 A.2d 229 (Del. 1970); Baldwin v. Atchison,
Topeka & Santa Fe Ry. Co., 425 S.W.2d 905 (Mo. 1968).
On the warning obligations of business proprietors, see Becker v. Colonial Parking, Inc., 409 F.2d
1130 (D.C. Cir. 1969) (cars maneuvering in defendant's parking lot); Baker v. Mid Me. Med.
Ctr., 499 A.2d 464 (Me. 1985) (dangers at golf tournament sponsored by defendant); Klopp v.
Wackenhut Corp., 824 P.2d 293 (N.M. 1992) (dangerous base of metal detector at airline security

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