In our February 2011 column, the problems of open-ended warnings litigation were discussed.1 In product use the range of possible dangers to be warned against is virtually limitless. The universe of potential warnings one can conjure up, particularly if all varieties of product misuse are included, is markedly open-ended. One doesn’t have to be terribly creative to simply identify a risk that may accompany a product’s design, its packaging, its range of normal and abnormal uses and then allege that the risk selected should have been the subject of a warning. In the case of product misuse, one simply might allege that the misuse was “foreseeable.” And, if a warning had been given, little problem, just say that the warning could have been made better, safer, or more effective. Our February article probed this subject in some depth.

A Dec. 23 decision by the Appellate Division, Fourth Department, Johnson v. Unifirst Corp.,2 shows just how “stubborn” and dismissal-resistant a warnings claim can be. Plaintiff was a welder whose uniform caught fire. Defendant supplied the uniform pursuant to an agreement with plaintiff’s employer. Plaintiff claimed negligence, strict products liability and breach of implied warranties because the uniforms were not flame-resistant. Defendant moved for summary judgment which was denied.

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