Placards, Warning Labels & (And) Operation Manuals: An Aircraft Manufacturer's Duty To Warn

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Journal of Air Law and Commerce

Volume 55 | Issue 1 Article 10
1989
Placards, Warning Labels & (and) Operation

Manuals: An Aircraft Manufacturer's Duty to Warn
James E. Link II
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James E. Link II, Placards, Warning Labels & (and) Operation Manuals: An Aircraft Manufacturer's Duty to Warn, 55 J. Air L. & Com.
265 (1989)
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PLACARDS, WARNING LABELS & OPERATION
MANUALS: AN AIRCRAFT MANUFACTURER'S
DUTY TO WARN
JAMES E. LINK, II
I. INTRODUCTION
A QUICK GLANCE into the cockpit of a private air-

plane reveals an extensive array of instrumentation,
flight controls, safety devices, and placards. Placards
warn of dangers ranging from fuel contamination to
proper seat position. Others provide vital instructions for
emergency situations, from de-icing to safe egress. These
warning placards attempt, as any warning labels do, to in-
sure safe operation of the aircraft where design modifica-
tions are impossible or impracticable. As the complexity
of modern aircraft increases and technology advances, the
human limitations of the pilot may adversely affect the
safe operation of the airplane.' Warnings or instructions
try to anticipate potential dangers and foreseeable human
shortcomings. When an aircraft manufacturer, however,
anticipates too many hazards or underestimates the skill
level and intelligence of the pilot, the result may be an
accident due to an overload of the information processing
capabilities of the pilot.
In normal operations as well as in an emergency situa-
tion, a pilot must make many decisions, making them
quickly, and correctly. To help make those decisions, the
pilot relies on instrumentation and control mechanisms
I See infra notes 152-174 and accompanying text for a discussion of human limi-
tations and how they impact product design.
265
266 JOURNAL OF AIR LA WAND COMMERCE [55
designed to allow smooth recovery from any problem sit-

uation. Placards in aviation traditionally provide critical
safety information in a way immediately available to the
pilot. Information on emergency de-icing or fuel
problems is neither timely nor effective if it is buried in
some operations manual or preflight checklist stuffed
under the seat. 2 Aircraft manufacturers, however, per-
haps fearing recent litigation results 3 may be basing new
placards on liability concerns rather than safety concerns.4
Indeed, some placards seem to be an attempt to avoid lia-
bility for actionable design defect claims.
2 Miller, Placards, Placards Everywhere, AOPA PILOT, Jan. 1987, at 103.

See, e.g., Cessna Aircraft Co. v. Fidelity & Casualty Co., 616 F. Supp. 671
(D.N.J. 1985) (The underlying state court action involved a jury verdict of $29.3
million dollars against Cessna, $25 million dollars of which constituted punitive
damages, based on finding that the manufacturer knew of a defective seat design,
yet failed to correct the problem or warn users. The original plaintiffs settled for
$13 million, then Cessna and its insurance carriers turned on each other.).
4 Miller, supra note 2, at 103; see also Miller, What is a Mandatory Service Bulletin?,
AOPA PILOT, Mar. 1986, at 121-22 ("mandatory" service bulletins from aircraft
manufacturers may fulfill the duty to warn of the importance of wearing shoulder
harnesses). But see Rimer v. Rockwell Int'l, 641 F.2d 450, 452 (6th Cir. 1981)
(Evidence indicated the manufacturer knew of a fuel cap problem but did not is-
sue a service bulletin requiring replacement of the fuel caps due to fear of encour-
aging litigation. The manufacturer, Rockwell, made available an optional custom
kit designed to replace the existing fuel caps, which were prone to siphoning. A
Rockwell memorandum revealed that the new antisiphoning cap "was purposely
put out as a Custom Kit rather than a mandatory service bulletin in an effort to
prevent operators from pressing litigation.").
Miller, supra note 2, at 103. Miller notes that Cessna Aircraft Company offers
two possible solutions to the problem of water collection in the fuel cells of cer-
tain Cessna single engine planes. Id. The alternatives are presented to the air-
craft owner in the form of an airworthiness directive. Id. The aircraft owner can
buy a new rubber fuel cell for about $1,000, or can install a 118-word placard in
full view of the pilot detailing a water draining procedure. The placard reads:
PRIOR TO FLIGHT FOLLOWING EXPOSURE TO RAIN, SLEET,
SNOW, OR AFTER FUELING FROM AN UNFILTERED FUEL
SOURCE:
1. DRAIN AND CATCH THE CONTENTS OF THE GASCO-
LATOR, WING, AND (IF EQUIPPED) RESERVOIR TANK SUMPS
AND CHECK FOR WATER CONTAMINATION.
2. PLACE THE AIRPLANE ON A LEVEL SURFACE AND
LOWER THE TAIL TO WITHIN FIVE INCHES OF THE
GROUND (ON NOSE-GEAR AIRPLANES).
3. ROCK THE WINGS 10 INCHES UP AND 10 INCHES DOWN
AT LEAST 12 TIMES.
4. DRAIN AND CATCH THE CONTENTS OF THE FUEL GAS-
1989] COMMENTS 267
Many placards result from the issuance by the FAA of
airworthiness directives (AD). 6 Once a manufacturer per-
suades the FAA to issue an AD addressing the danger, re-
7
sponsibility for the defect can shift to the operator.
Recent concern about the use of warnings by airplane
manufacturers to avoid products liability lawsuits
prompted the Aircraft Owners and Pilots Association
(AOPA) to protest the growing trend towards "placard
8
clutter" as an attempt to abuse the products liability area.
Placard clutter refers to the overuse of warning placards
or instructions in place of design improvements. 9 The
AOPA complains that manufacturers are abusing the use-
fulness of placards by providing too many."0 Coupled
with the problem of an increasing number of warnings
and mandatory placards is a new device from aircraft man-
COLATOR, WING, AND (IF EQUIPPED) RESERVOIR TANK

SUMPS AND CHECK FOR CONTAMINATION.
5. IF WATER IS FOUND IN STEP FOUR, REPEAT STEPS
THREE AND FOUR UNTIL NO ADDITIONAL WATER IS DE-
TECTED, OR DRAIN THE ENTIRE FUEL SYSTEM.
Id. at 104. The placard takes up a great deal of space, pertains to procedures
which are performed outside the cockpit and which cannot be performed alone,
and seems to place responsibility for a serious design defect on the pilot of the
aircraft. Id. at 103-04.
,; The regulations dealing with Airworthiness Directives are found in 14 C.F.R.
§ 39.1 (1988). Section 39.1 provides: "This part prescribes airworthiness direc-
tives that apply to aircraft, aircraft engines, propellers, or appliances (hereinafter
referred to in this part as "products") when - (a) An unsafe condition exists in a
product; and (b) That condition is likely to exist or develop in other products of
the same type design." Id. A complete examination of AD is beyond the scope of
this Comment. For a thorough exploration of AD and their effect on aircraft prod-
ucts liability cases, see Boyd, Airworthiness Directives; Evidentiay Value in Aircraft Liti-
gation, TRIAL, Aug. 1986 No. 8, at 59; Wilson, Airworthiness Directives: Recovering the
Cost of Compliance, 49J. AIR L. & COM. 1 (1983).
7 See 14 C.F.R. § 39.3 (1988). Section 39.3 provides: "No person may operate a
product to which an airworthiness directive applies except in accordance with the
requirements of that airworthiness directive." Id.; see, e.g., Crigler v. Cessna Air-
craft Co., 830 F.2d 169, 171 (11th Cir. 1987) ("Airworthiness directives are
mandatory regulations promulgated by the FAA and are binding on owners, oper-
ators and manufacturers.").
m Miller, supra note 2, at 103-04; see also Yodice, Product Liability, AOPA PILOT,
Feb. 1988, at 31-33.
Miller, supra note 2, at 103-04.
Id.
ufacturers called a "mandatory service bulletin."" The
mandatory service bulletin, unlike an AD, does not carry
the force of law. 12 Thus, the bulletins should prove a
weak liability defense.' 3 For purposes of this analysis,
however, the bulletins do serve a critical legal purpose.
The bulletins present a strong inference that the aircraft
4
manufacturer fulfilled its duty to warn.'
Clearly, the aircraft manufacturer must exercise due
care in warning pilots of dangers arising from the in-
tended and reasonably foreseeable uses of its product.' 5
These warnings, whether required by the government,
forced by the courts, or voluntarily placed by the aircraft
manufacturer, provide the pilot with quick, often crucial
information.' 6 As with other types of warnings, however,
too many warnings and unnecessary placards may reduce
instead of improve user awareness.' 7 In an attempt to
remedy this danger, an approach known as "human factor
I See Miller, What Is A Mandatory Service Bulletin?, AOPA PILOT, Mar. 1986, at
121.
1 Id. The mandatory service bulletin is not required as is an AD, but aircraft
manufacturers use the term "mandatory" in an attempt to obligate the owners of
the airplane to make the modification. Id.
'. Id. at 121-22. AOPA's attorneys examined the question of limited liability for
manufacturers due to the bulletins, but "found [no] cases where an owner's fail-
ure to comply with a service bulletin ha[d] been used as a successful defense. But,
the attorneys caution[ed], this does not mean it could not happen." Id.
' Id. at 122. Miller noted the following concerning the Beech Aircraft issuance
of a service bulletin about shoulder harnesses: "Plaintiffs' attorneys will not be
able to sue Beech for failing to make aircraft owners aware of the importance of
wearing shoulder harnesses or of failing to make the retrofit kits available. In
other words, by issuing the mandatory service bulletin, Beech has fulfilled its 'duty
to warn.' " Id.
I., B. Wrubel, Liability For Failure to Warn or Instruct, in Product Liability of
Manufacturers; 1987 Prevention and Defense 105 (1987) (bound collection of
symposium speeches, available in SMU Law School Library).
- Miller, supra note 2, at 103.
,7 See Jonescue v. Jewel Home Shopping Serv., 16 11. App. 3d 339, 306 N.E.2d
312, 316 (1973) ("The purpose of a warning is to appraise a party of a danger of
which he is not aware, and thus enable him to protect himself against it. When a
danger is fully obvious and generally appreciated, nothing of value is added by a
warning."); see also Plante v. Hobart Corp., 771 F.2d 617, 620 (1st Cir. 1985) ("In-
deed, if the law required suppliers to warn of all obvious dangers inherent in a
product, '[t]he list of foolish practices warned against would be so long, it would
fill a volume.' ") (quoting Kerr v. Koemn, 557 F. Supp. 283, 288 n.2 (S.D.N.Y.
1983)).
19891 COMMENTS 269
engineering" looks to the interaction between a person
and the machine that person operates.' 8 To a great ex-
tent, the physical characteristics and mental capacities
shared by all people dictate behavior under conditions of
stress or potential danger.' 9 Modern technology is capa-
ble of exceeding operator capabilities and, in some in-
stances, has already surpassed the human mind and
body. °
This Comment examines the effectiveness of aircraft
warnings, actual and proposed. The first section provides
an overview of warning claims and their impact on manu-
facturing. Next, a survey of case law in the area of aircraft
warnings will examine actual and proposed safety warn-
ings. Finally, a discussion of human factor psychology
and engineering will suggest the limitations of traditional
tort law in the context of warnings and instructions.
II. THE AIRCRAFT MANUFACTURER'S DUTY TO WARN IN

PRODUCTS LIABILITY LITIGATION
As a general rule, a manufacturer assumes liability when

his product, sold in an unreasonably dangerous condition,
is See Ryder, Human Factors Engineering in Accident Litigation: A Primer For

Nontechnologists, 10 J. PROD. LIAB. 51 (1987) (a description and discussion of
"human factors engineering").
- Id.; see also Bowman, Human Factors in the Defense of a Products Liability Case,
1982 PROC. OF THE SMU PRODUCTS LIABILITY INSTITUTE § 11.02[2] ("[H]uman
factors are the characteristics or the attributes of people, their weaknesses, apti-
tudes, capacity to make mistakes, forgetfulness, strength, ability to see, capacity to
work under stress. These human characteristics or factors are involved in the re-
lationship of a human user with any product.").
21 Yules, Human-FactorsExperts in Products Liability Litigation, 9J. PROD. LIAB. 107,
107 (1986). In this article, Yules set forth the following analysis:
One well-publicized illustration of this problem concerns the F- 16
fighter plane. Its astonishing maneuverability subjects the pilot to
such great gravitational forces that loss of consciousness by the pilot
with attendant loss of control of the aircraft is not uncommon. This
failure to match aircraft design to the limitations of the human pilot
is thought to explain the unexpectedly high number of crashes
among F-16s. Technological development has led to the recogni-
tion that the safe and efficient use of a machine is limited by the
capabilities of its operator.
injures the ultimate user. 2 ' Although the manufacturer is

2
not an insurer for all injuries caused by his products 2 it
must warn of dangers in some cases. The duty of a manu-
facturer to provide a warning or instruction arises when
three conditions exist: (1) there must be a risk of harm
inherent in the product or in its intended use,2 3 (2) the
21 RESTATEMENT (SECOND) OF TORTS § 402A (1965). This section of the Re-

statement reads:
Special Liability of Seller of Product for Physical Harm to User or
Consumer
(1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or con-
sumer, or to his property, if
(a) the seller is engaged in the business of selling such a product,
and
(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and
sale of his product, and
(b) the user or consumer has not bought the product from or en-
tered into any contractual relation with the seller.
Id.
Id.22
See Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32
TENN. L. REV. 363, 366-67 (1965). Traynor states:
It should be clear that the manufacturer is not an insurer for all inju-
ries caused by his products. A bottling company is liable for the in-
jury caused by a decomposing mouse found in its bottle. It is not
liable for whatever harm results to the consumer's teeth from the
sugar in its beverage. A knife manufacturer is not liable when the
user cuts himself with one of its knives. When the injury is in no way
attributable to a defect there is no basis for strict liability.
Id.; see alsoJonescue, 16 Ill. App. 3d at 339, 306 N.E.2d at 316 (holding "[t]he law
does not require every product to be accident proof, incapable of causing harm or
accompanied by a warning against any injury which may ensue from a mishap in
the use of the product"); Baker v. Int'l Harvester Co., 660 S.W.2d 21, 23 (Mo. Ct.
App. 1983) (noting that the manufacturer does not have a duty to design accident
proof products); Rogers v. Toro Mfg., 522 S.W.2d 632, 637 (Mo. Ct. App. 1975)
(noting that strict tort liability does not mean absolute liability); Bell Helicopter
Co. v. Bradshaw, 594 S.W.2d 519, 530 (Tex. Civ. App. 1979) (emphasizing that
the manufacturer is not obligated to design the safest product possible). But see
Piper Aircraft Corp. v. Evans, 424 So. 2d 586, 590 (Ala. 1982) (The trial court did
not err in refusing instructions which stated that there is no duty to build the
safest airplane possible, or an accident proof airplane. If error did occur, the Ala-
bama Supreme Court held it harmless in view of the entire oral charge to the
jury.).
2.1 W. KEETON, PROSSER AND KEETON ON TORTS 695 (5th ed. 1984). Keeton com-
ments that "a flaw in a product is defined as an abnormality or a condition that

1989] COMMENTS 271
manufacturer must know or reasonably foresee the risk of
harm 2 4 and (3) the product must possess a "defect. '2 5 A
defective warning may take the form of a total lack of
warning, an inadequate warning, or inadequate instruc-
tions on safe use of the product.2 6 The Restatement (Sec-
ond) of Torts suggests that a balancing test should
determine whether a reasonable man would or would not
sell the product, knowing the risk involved.2 7 In the con-
text of a warning claim, a product is unreasonably danger-
was unintended, and makes the product more dangerous than it would have been
as intended." Id.
24 Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1088 (5th Cir. 1973),
cert. denied, 419 U.S. 869 (1974) (the court emphasized that "[t]he requirement
that the danger be reasonably foreseeable, or scientifically discoverable, is an im-
portant limitation of the seller's liability"); see also KEETON, supra note 23, at 697.
Keeton, while noting that a few courts hold otherwise, states:
[A] claimant who seeks recovery [based on failure to warn or failure
to adequately warn] must, according to the generally accepted view,
prove that the manufacturer-designer knew or should have known in
the exercise of ordinary care the risk or hazard about which he failed
to warn.
Id.
Id.KEETON, supra note 23, at 694-97. Keeton sums up this element by stating:
"Once it is established that a target defendant sold a product that was flawed in
the kind of way that made it more dangerous than it would otherwise have been,
the plaintiff has established the kind of defect that makes the product 'unreasona-
bly dangerous' as a matter of law." Id. at 697.
2-" For a discussion of these definitions of defective warnings, see KEETON, supra
note 23, at 694-98.

27 RESTATEMENT (SECOND) OF TORTS § 402A comment i. The comment refers
to products in the context of foodstuffs by stating:
The rule stated in this Section applies only where the defective con-
dition of the product makes it unreasonably dangerous to the user or
consumer. Many products cannot possibly be made entirely safe for
all consumption, and any food or drug necessarily involves some risk
of harm .... That is not what is meant by "unreasonably danger-
ous" in this Section. The article sold must be dangerous to an ex-
tent beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common
to the community as to its characteristics ....
Id. (examples omitted); see also Borel, 493 F.2d at 1088 (the court cited comment i
of § 402A of the Restatement, stating "[t]he fulcrum for this balancing process is
the reasonable man as consumer or as seller."); Technical Chem. Co. v. Jacobs,
480 S.W.2d 602, 605 (Tex. 1972) (A product is unreasonably dangerous and,
therefore, defective if the ordinary man knowing the risks and dangers involved in
its use, "would not have marketed the product without supplying warnings as to
the risks and dangers involved in using the product as well as instructions as to
how to avoid those risks and dangers."). Consider MODEL UNIFORM PRODUCT LIA-
ous if a reasonable man would not market the product

without warning the ultimate user of the risks involved in
the use of the product. 28 A manufacturer's duty, however,
does not end there. Should the manufacturer decide to
market the product with warnings, those warnings must
be reasonably calculated to reach the ultimate consumer
or user, 29 catch the user's attention, and convey a fair in-
dication of the nature and extent of the danger to the
mind of a reasonably prudent person. 0 The manufac-
BiLITY ACT, § 104(C)(1) (1979), suggesting that to call a product unreasonably

unsafe because appropriate warnings or instructions were not provided,
the trier of fact must find that, at the time of manufacture, the likeli-
hood that the product would cause the claimant's harm or similar
haims and the seriousness of those harms rendered the manufac-
turer's instructions inadequate and that the manufacturer should
and could have provided the instructions or warnings which claimant
alleges would have been adequate.
Id.
I2 Bituminous Casualty Corp. v. Black and Decker Mfg., 518 S.W.2d 868, 872
(Tex. Civ. App. 1974).
21, Reese v. Mercury Marine Div., 793 F.2d 1416, 1422 (5th Cir. 1986) ("An
adequate warning must be reasonably calculated to reach the ultimate user of a
product." The court found the manufacturer's efforts to warn consisted solely of
a requirement for dealers to make sure boats were "properly equipped." No evi-
dence indicated the manufacturer directed its dealers to warn ultimate consum-
ers.); Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851, 858 (8th Cir.)
(informational literature from the manufacturer to distributors and automobile
manufacturers does not satisfy the duty to warn the ultimate consumer), cert. de-
nied, 423 U.S. 865 (1975); Borel, 493 F.2d at 1091 ("The seller's warning must be
reasonably calculated to reach [the ultimate consumer] and the presence of an
intermediate party will not by itself relieve the seller of this duty." The court held
reliance on insulation contractors to warn the ultimate users of asbestos was not
enough, due to the nature of the problem.); Eck v. E.I. DuPont De Nemours &
Co., 393 F.2d 197, 201 (7th Cir. 1968) (the court reversed the lower court and
sent to the jury the issue of whether the warning was reasonably calculated to
reach the ultimate user).
.1" The "reasonably prudent person" in a warning context refers to an ordinary
user of the product, not the knowledge of the particular person injured by the
product. Prince v. Parachutes, Inc., 685 P.2d 83, 88 (Alaska 1984). The average
user of a product may possess extraordinary knowledge beyond that of a person
unfamiliar with the product, and the manufacturer is entitled to take this factor
into account when deciding upon a warning. Id. at 88; see also Bituminous Casualty,
581 S.W.2d at 872-73 (the sufficiency of the warning language depends on the
language itself and the impression that language will make on the average user);
Reese, 793 F.2d at 1422 (although not determinative in light of the total evidence
presented at trial, evidence that the middleman dealer possessed knowledge of
the pros and cons of kill switch use impacted the manufacturer's duty to warn).
1989] COMMENTS 273
turer's conduct is generally judged under the negligence
standard, but in some cases courts do not seem to distin-
guish between negligence and strict liability.3
The question of proximate cause analyzes the effective-
ness of an actual warning or proposed warning, presump-
tions about warnings, and contributory defenses. A
manufacturer's failure to warn is not the proximate cause
of the plaintiff's injury if the proposed warning would not
have prevented the accident.3 2 In the absence of a warn-
ing, however, courts often allow a rebuttable presumption
that had a warning been given, the injured party would
have read and heeded it. 3 3 This presumption often satis-
-1 See generally Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979); Beshada
v. Johns-Manville Prods. Corp., 90 N.J. 191, 447 A.2d 539 (1982). A detailed
discussion of the standard applied to warnings is beyond the scope of this Com-
ment. For a criticism of strict liability in warning cases, see Barry & DeVivo, The
Evolution of Warnings: The Liberal Trend Toward Absolute ProductLiability, 20 FORUM 38
(1984).
. Conti v. Ford Motor Co., 743 F.2d 195 (3d Cir. 1984) (husband's inadver-
tence in starting car in reverse gear resulted in injury to his wife; there was no
evidence that he would have been more attentive if additional warnings were pro-
vided), cert. denied, 470 U.S. 1028 (1985); Stevens v. Cessna Aircraft Co., 115 Cal.
App. 3d 431, 170 Cal. Rptr. 925 (1981) (pilot had control of the airplane and
responsibility under regulations to determine aircraft weight prior to takeoff; a
simple warning for passengers as to plane's load capacity would not have been
effective, as too many additional factors exist for a nonpilot to make a safe-weight
calculation).
.- RESTATEMENT (SECOND) OF TORTS § 402A comment j. The comment ad-
dresses user conduct by stating:
Directions or Warning. In order to prevent the product from being
unreasonably dangerous, the seller may be required to give direc-
tions or warning, on the container, as to its use. The seller may rea-
sonably assume that those with common allergies, as for example to
eggs or strawberries, will be aware of them, and he is not required to
warn against them. Where, however, the product contains an ingre-
dient to which a substantial number of the population are allergic,
and the ingredient is one whose danger is not generally known, or if
known is one which the consumer would reasonably not expect to
find in the product, the seller is required to give warning against it, if
he has knowledge, or by the application of reasonable, developed
human skill and foresight should have knowledge, of the presence of
the ingredient and the danger. Likewise in the case of poisonous
drugs, or those unduly dangerous for other reasons, warning as to
use may be required.
But a seller is not required to warn with respect to products, or
ingredients in them, which are only dangerous, or potentially so,
when consumed in excessive quantity, or over a long period of time,
fies the proximate cause inquiry.3 4 It is, however, impor-
tant to note that in some instances a manufacturer may be
held liable for failure to warn adequately, even where the
plaintiff did not read the warning provided. 5
III. CASE LAW

Cases involving warning claims typically involve a de-
sign defect claim as well. Where possible, this Comment
examines only the warning claims against the aircraft
manufacturer. 6 This section will examine holdings in
which the court found no duty to warn or held the warn-
ing given was adequate, and cases where the manufac-
turer failed to warn or inadequately warned. The jury
makes the determination of liability or no liability in al-
when the danger, or potentiality of danger, is generally known and

recognized....
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.
Id.;see also Caplaco One, Inc. v. Amerex Corp., 435 F. Supp. 1116, 1119 (E.D. Mo.
1977) (a user must make a reasonable inspection of the package to see if a warn-
ing is present), aff'd, 572 F.2d 634 (8th Cir. 1978).
.4 Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.) (where manufacturer
fails to warn, presumption will arise that had warning been given, consumer
would have read it and acted so as to have avoided the risk; in the absence of
evidence rebutting the presumption, ajury may find that the failure to warn was a
producing cause of the plaintiff's injury), cert. denied, 419 U.S. 1096 (1974); see also
Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo. 1986) (en banc) (the manu-
facturer is entitled to rely on the presumption that the user would read the warn-
ing provided); Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 376 N.E.2d 143
(1978) (the failure to give a warning that would in the ordinary course have come
to the user's attention "permits the inference that it would have alerted the user
to the danger and forestalled the accident."). But see Potthoff v. Alms, 41 Colo.
App. 51, 583 P.2d 309 (1978) (where the danger is obvious, the adequacy of the
warning must be determined on the basis of evidence alone and no presumption
exists).
.5 See infra notes 116-133 and accompanying text for a discussion of Nesselrode
v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. 1986) (en banc) in which the
court held that the warning provided was insufficient, regardless of whether or not
the mechanics had seen the warning.
-'1For a discussion of design and warning claims against component part manu-
facturers see P. KEETON, PROSSER AND KEETON ON TORTS 705-06 and Comment,
Products Liability; Component Part Manufacturer's Liability For Design and Warning De-
fects, 54J. AIR L. & CoM. 215 (1988).
1989] COMMENTS 275
most all cases involving warning claims. Consequently,
application of the reasonable man standard does not al-
ways seem consistent. These cases are presented as illus-
trations of the type and result of litigation over aircraft
warnings. The relative weight given certain evidence and
fact findings should aid practitioners and manufacturers
in more accurately predicting the reasonableness, suffi-
ciency, and practicality of warnings provided.
A. Cases Declining to Find a Duty to Warn or Finding That

Warning Provided Was Adequate
Litigation involving warning claims against manufactur-
ers which find no duty was breached most often relies on
evidence that the warning provided was sufficient. Since
this determination is most often made by a jury, the court
considering the appeal reviews the findings on an abuse
of discretion standard. The seeming lack of any definable
test for determining the sufficiency of a warning exempli-
fies some of the difficulties faced by manufacturers when
trying to avoid liability for their products.
In Chohlis v. Cessna Aircraft Co. ,37 the United States Court
of Appeals for the Eighth Circuit upheld a jury's refusal to
find that the plane was defective, instead returning a ver-
dict for the manufacturer.38 The plaintiff's husband, a
passenger in the Cessna airplane, died when the airplane
crashed on landing. 39 The plaintiff alleged that the
-7 760 F.2d 901 (8th Cir. 1985).

- Id. at 904.
-itId.at 903. Evidence showed the engine failed due to lack of fuel, although
the main tanks contained a significant quantity of fuel. Id. Due to a bypass feature
in the fuel injection system, excess fuel returned to the main fuel tanks, regardless
of which tank the fuel originated from. Id. Consequently, the auxiliary tanks con-
tained less usable fuel than the main tanks as the main tanks effectively "confis-
cated" unused auxiliary fuel. Id. The court explained the tanks as follows:
The plane was equipped with four fuel tanks: a primary and auxiliary
tank in each wing. Two fuel gauges served four tanks; the gauges
normally displayed the levels in the tanks being used. By flipping a
switch, however, the levels in the tanks not in use should be dis-
played. An amber light on each gauge indicated when the auxiliary
tanks were in use.
plane's fuel system was defective, as were the warnings

provided about the unusual fuel arrangement of the
plane.40 According to the plaintiff, the fuel arrangement
caused unnecessary confusion in the mind of the average
pilot. 4 ' Expert witnesses also testified that the instruc-
tions recommended procedures which did not comply
with known, reasonable, common pilot behavior.42 Other
experts recommended a warning light to indicate to the
pilot when fuel tanks reached a certain low level. 43 The
plaintiff argued that the "unnecessarily complex fuel sys-
tem" induced pilot error and Cessna's warnings were not
sufficient to prevent error.44
Cessna, on the other hand, offered evidence of many
different warnings designed to call attention to this fuel
anomaly. The plane's owner's manual, for example, rec-
ommended use of the main tanks during takeoff, landing,
and all emergency operations. 45 The manual also cau-
tioned that because of the fuel diversion feature, the aux-
iliary tanks could run dry sooner than anticipated.4 6
Further warnings in the checklist for landing directed the
pilot to switch to the main tanks prior to lowering the
landing gear.47 A placard posted in the cockpit further
cautioned the pilot that the switch to the main tanks was
4O Id.
41 Id.
2 Id. The court related the contentions of the plaintiff's experts by stating:
The plaintiff's experts described the fuel system as defective and the
accompanying instructions as inadequate. For example, the manual
"recommended" that the pilot not operate on the auxiliary tanks
under 1,000 feet altitude. One of the plaintiff's experts stated that
often a pilot will be in a lower altitude, perhaps 800 feet, when the
descent checklist is initiated. He testified that the manual should
have stated: "Do not operate on auxiliary tanks below 1,000 feet."
In addition, he criticized the cockpit placard as deficient in not advis-
ing the pilot of how many minutes of operation the auxiliary tanks
would sustain.
Id.
43 Id. at 904.
44 Id.
- Id. at 903.
46 Id.
47 Id.
1989] COMMENTS 277
the first step in the landing preparation process.48 After

the jury finding of no negligence, the trial court denied
the plaintiff's motion for a new trial, and the Eighth Cir-
cuit affirmed. The plaintiff's appeal rested mainly on ob-
jections to jury instructions, all of which the court of
appeals found fairly and adequately stated the substantive
law.49
The case of Kroon v. Beech Aircraft Corp.50 turned on the
issue of proximate cause. In this case, the trial judge de-
cided the proximate cause inquiry, as the parties had stip-
ulated the facts. 51 The pilot failed to remove the gust lock
from his Beech airplane, resulting in a wreck following an
aborted takeoff attempt. 52 Beech moved for summary
judgment, a motion granted by the trial court and af-
firmed by the United States Court of Appeals for the Fifth
Circuit.5 3 The court emphasized the pilot's carelessness
rather than an inadequate warning on the gust lock sys-
tem itself. 54 The pilot admitted that he did not comply
with the checklist of pretakeoff operations. 55 The check-
list, with which the pilot was admittedly familiar, clearly
included an instruction to remove the gust locks.5 6 None-
theless, the plaintiff attempted to argue that Beech should
4IId. at 907.
4 d. at 903.
628 F.2d 891 (5th Cir. 1980).
id. at 892. Under Florida law, summary judgment is proper in cases where
reasonable jurors could only conclude that the plaintiff's conduct constituted the
sole proximate cause of the injury. Helman v. Seaboard Coast Line R.R. Co., 349
So. 2d 1187, 1190 (Fla. 1977) (The function of the jury is to determine proximate
cause by drawing inferences from the evidence presented. A summary judgment
can only be sustained where "the evidence [is] of such a nature that reasonable
men could only conclude that the behavior of [the plaintiff] was the sole proxi-
mate cause of the accident.").
'2Kroon,628 F.2d at 892. The aileron and elevator gust lock protects the plane
from stong winds while not in use. Id. The lock pins the aileron and elevator
controls to prevent movement. The airplane will not fly with the lock still in place.
Id.
.%.IId. at 894.
.4 Id.
.-Id. at 893. The checklist was directly in front of Kroon from the time he
entered the cockpit of the aircraft. Id. However, he admitted he did not properly
perform the required check to insure that the controls moved freely. Id.
mi Id.
have designed the gust lock system so as to prevent the
plane from operating while the locks were in place.57
In affirming the trial judge's decision, the Fifth Circuit
refused to consider the issues of negligent failure to warn
and design defect.58 While admitting the design of the
lock system was a cause of the accident,5 9 the court re-
fused to find that the design problem rose to the level of
proximate cause.6 0 Further, the placard in front of the pi-
lot required a preflight check which would have revealed
the problem.6n Clearly, the court considered this placard
a much more reasonable alternative than a design modifi-
cation which prevented operation of the plane with the
gust locks still in place. Thus, pilot knowledge of an obvi-
ous danger can eliminate the need for further warnings or
62
a design that makes the plane foolproof.
Id.
.57
." The court stated: "The rudder gust lock is not in issue in this case." Kroon,
628 F.2d at 892.
' Id. at 893.
Id. The court found sufficient evidence on the facts that "nothing in the de-
sign of the gust lock nor Beech's failure to warn users of a potential danger proxi-
mately caused this accident." Id. (emphasis in original).
-I Id.
62 Id. at 893-94. The court of appeals cited with approval the trial court's anal-
ogy of this accident to a situation in which a pilot takes off with only a gallon of
fuel in the plane's tanks. Id.The court noted:
Such accidents can and do happen; and no doubt an airplane could
be designed to make such an accident impossible. It would, how-
ever, strain reason to suggest that the failure to make the aircraft
foolproof in that detail proximately causes the resulting disaster if an
experienced pilot familiar with the particular aircraft were to take off
without checking to see if he had sufficient fuel.
Id.; cf RESTATEMENT (SECOND) OF TORTS § 402A comment n. The comment
states:
[Clontributory negligence of the plaintiff is not a defense when such
negligence consists merely in a failure to discover the defect in the
product, or to guard against the possibility of its existence. On the
other hand the form of contributory negligence which consists in
voluntarily and unreasonably proceeding to encounter a known dan-
ger, and commonly passes under the name of assumption of risk, is a
defense under this Section as in other cases of strict liability. If the
user or consumer discovers the defect and is aware of the danger,
and nevertheless proceeds unreasonably to make use of the product
and is injured by it, he is barred from recovery.
1989] COMMENTS 279
In Kay v. CessnaAircraft Co. ,63 the United States Court of

Appeals for the Ninth Circuit examined instructions pro-
vided by the aircraft manufacturer and unforeseeable mis-
use of an airplane. The court of appeals upheld the trial
court's judgment notwithstanding the verdict and found
that Cessna was not liable for the pilot's death.' Undis-
puted evidence showed that the pilot completed warm-up
procedures in the parking lot, then taxied to the end of
the runway where the rear engine of the plane stopped.65
He sat at the end of the runway for several minutes, igno-
rant of the problem, then attempted to take off with only
the front engine in operation. 66 Early models of the plane
featured a thrust warning light which informed the pilot
of rear engine failure.6 7 Later models, such as Kay's, did
not include the warning light due to its unreliability and
tendency to give false warnings. 68 The plaintiffs con-
tended that Cessna's instructions, with respect to opera-
tion of the twin engined plane, did not adequately warn of
the hazards of one-engine operation, thus rendering the
plane defectively dangerous.69 In the alternative, the
plaintiffs argued that the pilot's actions constituted a fore-
548 F.2d 1370 (9th Cir. 1977).

Id. at 1371. The Cessna Skymaster Model 377 involved in the crash "is a twin
engine aircraft of'push-me/pull-me' design .... Id. at 1372. That is, the air-
craft has "one pulling engine forward of the pilot as in the traditional single en-
gine design and the second pushing engine behind the pilot and totally obscured
from his view." Id.
'5 Id.
Id. In the Skymaster 377, "rear engine failure cannot be detected either visu-
ally or by a change in the plane's movement." Id. Contrast this to engine failure
in a conventional twin, which is easily cognizable by a "sharp and violent turning
motion." Id.
67 Id.
- Id. The plaintiff offered newly discovered evidence on appeal in the form of
an internal memorandum by Cessna's Manager of Flight Text and Aerodynamics.
Id. The memorandum criticized the decision to discontinue the warning lights
and called the then-existing system inadequate. Id. The appeals court held this
evidence to be cumulative and therefore not relevant to the trial judge's decision
to grant the motion for judgment notwithstanding the verdict. Id. at 1373. Evi-
dence at trial convinced the court that Cessna attempted to develop a system free
of the unreliability of earlier models, but could not successfully develop such a
warning system. Id. at 1372.
w- Id. at 1372.
seeable misuse of the aircraft.7 °

The court of appeals addressed each recovery theory in
turn. As to the negligent failure to warn claim, the court
drew heavily on the defendant's owner's manual pretake-
off procedures.7' These procedures included looking at
the instrument panel for indications of a dead engine or a
rough or sluggish engine. 72 The checklist expressly rec-
ommended a full-throttle engine check for early indica-
tions of engine trouble.73 The owner's manual warned
that any indication of engine trouble "constitute[s] good
cause for discontinuing the take-off."'74 The plaintiff's ev-
idence did not refute the fact that compliance with the
owner's manual procedures would have avoided the acci-
dent.75 Nor did the plaintiff offer an alternative warning
or procedure that would have prevented the crash.7 6
On the second claim of foreseeable misuse, the court
concentrated on the pilot's inaction while waiting to take
off.
77
A simple visual scan of the instrument panel would
have alerted the pilot to the dead engine.78 The court
found it entirely reasonable for Cessna to expect pilots of
Skymasters to comply with the owner's manual and basic
air safety principles. 79 Thus, Cessna was not reasonably
expected to anticipate a pilot failing to check his instru-
ment panel while waiting for takeoff.80 In upholding the
trial judge's decision, the court held Cessna's instructions
7o Id. at 1372-73.
1,Id. at 1373. The court stated: "The Owner's Manual sets forth procedures
the pilot should follow before take-off which include checks of the throttle settings
and the magnetos. The instructions further provide that the pilot should check
full-throttle engine operation early in the take-off run." Id.
72 Id. at 1373 n.2.
7. Id. The Owner's Manual under the heading "TAKE-OFF" stated: "It is im-
portant to check full-throttle engine operation early in the take-off run." Id.
74 Id.
7. Id. at 1373.
76 Id.
77 Id.
7. Id.
71 Id The court stated: "Both the Skymaster manual and basic principles of
aircraft safety dictate that the pilot be alert [immediately before and during take-
off] for potential problems." Id.
.O Id.
1989] COMMENTS 281
adequate to alert the pilot of engine failure before takeoff,
and held that the pilot's failure to comply with the instruc-
8
tions constituted unforeseeable misuse. '
In Rehler v. Beech Aircraft Corp.,82 the pilot died when his
Beech Baron airplane crashed approximately one hour af-
ter takeoff.8 3 The plaintiff alleged that Beech defectively
designed the airplane in that the Baron had a tendency to
fall into a flat spin, and that Beech failed to warn of this
tendency in the Baron's "Pilot Operating Handbook. 8 a4
In addition, the plaintiff contended that the spin recovery
procedure in the handbook was ineffective for pulling the
plane out of a flat spin. 5 The jury's special verdict found
the manufacturer did not defectively design the aircraft,
nor did it fail to give adequate warnings.8 6 The jury then
found the actions of the pilot the sole proximate cause of
the accident.8 7
On appeal, the plaintiff attempted to demonstrate that
the evidence presented at trial pointed to misrepresenta-
tion by Beech as to the spin recovery of the aircraft.88 In
upholding the jury findings on design defect, the court of
8' Id.
'-777 F.2d 1072 (5th Cir. 1985).
m,Id. at 1074. Witnesses observed the plane spinning to the left at a low alti-
tude immediately before impact. Id.
H4 Id. at 1075 n.5.
I
ld.
Id. at 1075-76.
,7Id. at 1076.
8 Id. The manual did not distinguish between flat spins and steep (normal)
spins, detailing an emergency procedure only for correcting "spins." Id. at 1084.
The Baron's Operating Handbook stated:
SPINS
If a spin is entered inadvertently:
Immediately move the control column full forward, apply full rud-
der opposite to the direction of the spin and reduce power on both
engines to idle. These three actions should be done as near simulta-
neously as possible; then continue to hold this control position until
rotation stops and then neutralize all controls and execute a smooth
pullout. Ailerons should be neutral during recovery.
NOTE
Federal Aviation Administration Regulations did not require spin
demonstration of airplanes of this weight; therefore, no spin tests
have been conducted. The recovery technique is based on the best
available information.
appeals relied heavily on Beech's compliance with Civil

Air Regulations of the FAA. 8 9 The plaintiff then argued
that the trial judge failed to properly instruct the jury that
Beech's compliance with the FAA guidelines did not con-
stitute an absolute defense to the design defect claim. 90
In upholding the instruction given, the court cited the
plaintiff's own closing statement as evidence that the jury
did not see compliance with the FAA's minimum stan-
dards as determinative of the liability issue. 9'
In Stevens v. Cessna Aircraft Co.,92 the plaintiff alleged
Cessna was negligent in failing to provide a warning for
passengers of an aircraft.93 Although the opinion does
not factually determine the cause of the crash, the plaintiff
alleged that the weight overloaded the aircraft's capabili-
ties, and that Cessna's failure to warn passengers of the
plane's load capacity made the aircraft defective. 94 The
California Court of Appeals affirmed summary judgment
for the defendant. 95 The court based its holding on the
pilot's responsibilities for the operation of the aircraft.96
"It is the pilot who has control of the airplane and the
Id. This instruction stood alone on a page of the Handbook. The size and type of
the instruction and "NOTE" were identical. Id. at 1087 n.7.
8" Id. at 1079. The court held:
"While [plaintiff's] evidence provided a basis from which the jury
could have concluded that the tests required by the FAA in the Civil
Air Regulations were not thorough enough to reveal the aircraft's
undue spinning tendencies, we find no substantial evidence to indi-
cate that Beech failed to follow the FAA procedures or misreported
the results of the Civil Air Regulations test.
Id. (footnote omitted).
Id. at 1083.
Id. at 1084. The court found "no indication in the record that Beech ever
suggested to the jury that Beech's compliance with FAA regulations, of itself, pre-
cluded the jury from finding that the airplane was defective in an unreasonably
dangerous way." Id. But see Kastner v. Beech Aircraft Corp., 650 S.W.2d 312
(Mo. Ct. App. 1983) (jury verdict for plaintiff in wrongful death action against
Beech for failure to adequately warn of a dangerous tendency of the Beech Baron
Model 95-A55 to go into a flat spin).
2 115 Cal. App. 3d 431, 170 Cal. Rptr. 925 (1981).
Id. at 431, 170 Cal. Rptr. at 926.
Id.
I'
"5Id.
9"Id.
1989] COMMENTS 283
responsibility under federal regulations to determine air-
craft weight prior to take-off."'97 The court found that in-
structions to the pilot concerning weight limitations
found in the owner's manual relieved the manufacturer of
98
any duty to provide the same information to passengers.
The plaintiff attempted to analogize an aircraft passenger
to a passenger in an elevator or golf cart,9 9 but the court
stated, "Whether the plane can fly safely with a given total
weight of passengers depends upon too many additional
factors for a passenger to make an informed and intelli-
gent judgment from [a simple warning]."' 00 Requiring
the manufacturer to supply passengers with complex
97 Id. The court cited 14 C.F.R. §§ 91.3, 91.5, 91.31 (1978), recodified as 14
C.F.R. §§ 91.3, 91.5, 91.31 (1988), in support of its statement that it is the pilot's
duty to assume responsibility for the plane and meeting weight restrictions. Ste-
vens, 115 Cal. App. 3d at 431, 170 Cal. Rptr. at 926. The regulations cited retain
their form in the 1988 Regulations. Section 91.3 provides in pertinent part: "The
pilot in command of an aircraft is directly responsible for, and is the final author-
ity as to, the operation of that aircraft." 14 C.F.R. § 91.3(a) (1988). Section 91.5
provides: "Each pilot in command shall, before beginning a flight, familiarize him-
self with all available information concerning that flight. This information must
include: . . .reliable information appropriate to the aircraft, relating to aircraft
performance under expected values of airport elevation and runway slope, aircraft
gross weight, and wind and temperature." 14 C.F.R. § 91.5(b)(2) (1988) (emphasis
added). Section 91.31 provides in pertinent part: "[N]o person may operate a
civil aircraft without complying with the operating limitations specified in the ap-
proved Airplane or Rotorcraft Flight Manual, markings, and placards, or as other-
wise prescribed by the certificating authority of the country of registry." 14
C.F.R. § 91.31(a) (1988); see also Associated Aviation Underwriters v. United
States, 462 F. Supp. 674, 681 (N.D. Tex. 1979) ("The pilot is primarily responsi-
ble for the safe operation of his aircraft and has the final authority as to its opera-
tion. ....
").
1wStevens, 115 Cal. App. 3d at 431, 170 Cal. Rptr. at 926. The court stated:
"The owner's manual for this type of aircraft contained the necessary information
for use by the pilot. Defendant did not have a duty to provide such information to
the passengers also." Id.
:p'A passenger in an elevator or golf cart possesses the knowledge needed to
make an informed weight calculation for those products. For example, the eleva-
tor passenger reads the weight warning in an elevator and can make a reasonably
accurate guess as to the total weight of the occupants of the elevator. Similarly, a
golf cart passenger can read a warning restricting passengers to a certain number
and evaluate compliance. However, weight calculation necessary for safe aircraft
operation depends on variables far more complex, such as range, fuel load, and
weather conditions.
,-Stevens, 115 Cal. App. 3d at 431, 170 Cal. Rptr. at 926; see Cavers v. Cushman
Motor Sales, Inc., 95 Cal. App. 3d 338, 157 Cal. Rptr. 142 (1979) (discussion of
duty to warn golf cart passengers).
weight calculation warnings so that they might "second-

guess the pilot on a myriad of flying decisions" would not
benefit passenger safety in the long run.' 0 '
In cases where the courts have found that aircraft man-
ufacturers have adequately warned users of foreseeable
problems associated with the airplane, pilots are clearly
held to a higher standard of knowledge than that of a lay-
man unfamiliar with the product. Manufacturers can rely
on a certain level of competence among pilots by virtue of
the required level of flight training, familiarity with the
product, and knowledge of basic flight safety principles.
In some instances, however, the manufacturers may over-
estimate the capabilities or actions of the operator (or the
mechanic charged with maintenance of the airplane). In
these instances, courts declare the warning insufficient
and hold the manufacturer liable for damages sustained
by the user.
B. Cases Imposing Liability For Failure to Warn or Failure to

Adequately Warn
The following cases find a breach of the duty to warn in
light of the performance of the product and the actions of
the manufacturer. As in the previous cases involving ade-
quate warnings, judicial findings of inadequate warnings
often intertwine with design defect claims. Again as
before, the standard of a reasonable man's conduct neces-
sarily involves ajury determination of the issue of a warn-
ing defect. It is interesting to note that in these cases, the
manufacturer either failed to anticipate a foreseeable mis-
use or failed to take proper steps to insure safety of the
average user.
In Berkebile v. Brantly Helicopter Corp.,1° 2 a pilot died in
the crash of his helicopter. Prior to the crash, a seven foot
long piece of one of the three rotor blades separated from
I'Stevens, 115 Cal. App. 3d at 431, 170 Cal. Rptr. at 926.

....225 Pa. Super. 349, 311 A.2d 140 (1973), aff'd, 462 Pa. 83, 337 A.2d 893
(1975).
1989] COMMENTS 285
the helicopter and flew off. 10 3 Part of the controversy re-
volved around the issue of whether the blade failure re-
sulted from a design defect or improper autorotation by
the pilot. 0 4 The plaintiff alleged both design defect and
lack of adequate warnings. 0 5 The trial judge submitted
the case to the jury, emphasizing the defect claim and re-
fusing to address directly, or give instruction pertaining
to, the warning claim.'0 6 In challenging this ruling by the
trial judge, the plaintiff presented evidence that the manu-
facturer failed to warn the pilot of the response time nec-0 7
essary to successfully initiate autorotation procedures.'
Further evidence indicated that applicable FAA regula-
tions imposed a statutory duty on the manufacturer to
supply intelligible and complete directions and warnings
dealing with the autorotation process. 0 8
lo., Id. at 349, 311 A.2d at 142.

1114Id.
1... Id. The design defect claim alleged that "in the event of emergency power
failure in climbing flight the pilot had only one-third second to get into autorota-
tion which was not enough time to enable a reasonable man to save his life." Id.
Plaintiff also alleged defective manufacture of the rotor blade itself, and safety
misrepresentations about the helicopter in its advertising brochure. Id.
.. Id. at 349, 311 A.2d at 143.
17 See id. at 349, 311 A.2d at 144. The court summarized the manufacturer's
efforts to warn by stating:

[Tihe warnings of the dangers and instructions for flying the B-2 are
contained in the Rotorcraft Flight Manual and in the cockpit placard.
There is no specific warning as to the time needed to get into
autorotation, and there is no direction or warning with respect to
"Engine Failure in Climbing Flight." There are, however, directions
to the pilot to lower the collective pitch lever in case of engine fail-
ure; that autorotation should be implemented at no less than 300
rotor RPM; and, that failure to comply "may result in damage to the
outer blades."
Id.
,,,1Id. In quoting the regulations upon which it made this finding, the court
held that "the FAA standards are to be given great weight, especially where viola-
tion of the minimum requirements is evident." Id. The court quoted two particu-
larly applicable Civil Air Regulations as stating:
§ 6.700(b). The operating limitations, together with any other in-
formation concerning the rotorcraft found necessary for safety dur-
ing operation shall be included in the Rotorcraft Flight Manual
(§ 6.740), shall be expressed as markings andplacards, (§ 6.730) and shall
be made available by such other means as will convey the informa-
tion to the crew members.
§ 6.730(c). Additional information, placards and instrument
The Superior Court of Pennsylvania reversed the trial
court and remanded the case for new trial and a jury de-
termination of the defectiveness of the helicopter. 0 9 Af-
ter referring to Restatement (Second) of Torts section
402A for the general proposition of warnings and their
effect on a product's defective nature," 0 the court stated
that "[ilt is imperative that a jury hearing a case of strict
liability in tort be aware of its duty to find liability where
inadequate warnings exist, even in the absence of a defect
in the design, manufacture, or preparation of the prod-
uct. "' In this case, there was absolutely no warning as
to reaction time for autorotation, 1 2 nor direction or
warning addressing engine failure in climbing flight." 3
The jury should have been instructed to determine if the
warnings and instructions given sufficiently warned the pi-
lot of delayed autorotation dangers and the urgency of in-
stantaneous reaction.' 14
In this accident, the court felt the complete lack of any
warnings deprived the pilot of information crucial to the
safe operation of the helicopter. The monetary cost of
markings having a direct and important bearing on safe operation of

the rotorcraft shall be required when unusual design, operating, or
handling characteristics so warrant.
Id. (emphasis in original).
Id. at 349, 311 A.2d at 147.
Id. at 349, 311 A.2d at 143. The court held: "As a matter of law, a product
that is marketed without adequate directions or warnings as to its use is unreason-
ably dangerous, and in a defective condition." Id.
- Id. The court went on to quote Third Circuit application of Pennsylvania
law:
If the manufacturer owes a duty to use care in making his products,
he owes also the companion duty to warn of latent limitations of
even a perfectly made article, the use of which, however, is danger-
ous if the user is ignorant of those limitations and the manufacturer
has no reason to believe that he will recognize the danger.
Id. (quoting Tomao v. A.P. DeSanno & Son, 209 F.2d 544, 546 (3d Cir. 1954)); see
also Hopkins v. E.I. DuPont DeNemours & Co., 199 F.2d 930 (3d Cir. 1952) (A
worker died while "packing" dynamite near another worker who was drilling a
hole in rock. The court held that the issue of negligent failure to warn should
have been submitted to the jury in light of evidence that no warning directly ad-
dressed the circumstance under which the accident occurred).
12 Berkebile, 255 Pa. Super. at 349, 311 A.2d at 144.
i1/d.
114 Id.
1989] COMMENTS 287
such a warning or instruction seems negligible, but argua-
bly the aggregate cost in terms of increased danger stem-
ming from pilot information overload adds significantly to
l5
the cost of a simple placard."
In Nesselrode v. Executive Beechcraft, Inc. ,1"6 reverse instal-
lation of elevator trim tab actuators" 17 caused the crash of
a Beech Baron in which the pilot and three passengers
died."' 8 The suit was filed on behalf of one of the passen-
gers, alleging defective design and failure to warn. 1 9 The
two trim tab actuators look identical but are functionally
opposite. 120 More importantly, the undisputed evidence
showed that the parts could easily be interchanged, a situ-
ation which rendered the plane impossible to fly prop-
erly.' 2 ' The plaintiff, based on this evidence, prevailed on
the claims that the failure to warn of this danger consti-
tuted negligence, and the absence of a warning about the
possibility of reverse installation rendered the product de-
"1 See infra notes 152-174 and accompanying text for a discussion of human
factors in engineering and design and how these human limitations impact safety.
11,;707 S.W.2d 371 (Mo. 1986) (en banc).
17 Id. at 374. Trim tab actuators move the trim tabs of an aircraft. On a large
plane such as the Beech Baron, they aid the pilot by taking most of the weight off
the yoke, providing control without the necessity of a great deal of muscle power.
Id.
Id. at 373.
Id. Also joined in the suit as defendants were the mechanics who incorrectly
installed the actuators. Id. The accident occurred during the first flight after the
mechanics installed new trim tab actuators in the aircraft. Id. at 374. For a discus-
sion of liability of aircraft repair companies, see Comment, Liability of Independent
Servicers and Repairers of Aircraft, 54 J. AIR L. & CoM. 181 (1988).
12.. Nesselrode, 707 S.W.2d at 374-75.
1'2 Id. at 374. The court described the consequences of improper installation
by stating:
Reversing the proper placement of the elevator trim tab actuators
causes the trim tabs to move in a direction opposite from the one in
which they are supposed to move-thereby preventing the proper
operation of the elevators. Thus, when [the pilot] attempted to
make the airplane climb, he began by signaling the elevators into
operation. Next, he signaled the trim tabs to move downward, to
assist in the climb and to relieve the forces he felt on the control
wheel. But, because the right and left actuators had been reversely
installed, the trim tabs not only failed to make the correct directional
movements but actually forced the nose of the airplane downward,
making it virtually uncontrollable.
fective 1 22 The Court of Appeals and Supreme Court of

Missouri affirmed the negligence finding of the jury, but
held the trial court should have granted Beech's motion
for directed verdict or later motion for a judgment
notwithstanding the trial court's decision on the damages
issue. 123
After an extensive review of Missouri tort liability, the
Missouri Supreme Court described the "heart and soul of
a strict tort liability design defect case" as "unreasonable
danger. "124 The court gave the jury finding of unreasona-
bleness a great deal of weight in its decision.' 25 The
plaintiff succeeded in showing that mechanics could not
tell the actuators apart by visual inspection.' 26 The
mechanics further testified they did not know before the
crash that reverse installation of the parts was physically
possible. 127 The mechanics and other witnesses testified
that the industry practice dictated a "go right or no go" or
"murphy proof" design standard, meaning that parts de-
sign should not allow incorrect installation. 2 8 The plain-
tiffs offered evidence that Beech encouraged this practice
in its engineering manual. 29 In addition, an FAA regula-
'"2 Id. at 375.

12:1 Id. at 373.
124 Id. at 376.
1 Id. at 378, 385.
12 Id. at 379.
'27 Id.
12 Id. Compliance with a "murphy proof" standard requires that critical flight
parts be designed in such a way that improper installation or assembly is physi-
cally impossible. Id. The "murphy proof" design standard attempts to overcome
human carelessness or inattention with design features unique to a particular
component part or assembly procedure. Id.
"' Id. Beech's engineering manual stated the following design policy:
Go Right or No Go. The phrase, "go right or no go" has been as-
signed to a design criterion adopted by the Army and applicable par-
ticularly to aircraft. Essentially, it is a requirement that replaceable
parts of aircraft must be so designed that they cannot be installed
any way but the right way. As a design policy, it shall apply to all
Beech products in applications where the consequences of wrong
assembly presents any hazardous condition to the article, its occu-
pants or users. For accomplishment of this design policy, consider
such examples as drilling assembly bolts at odd angles or locations,
providing a unique keyway, or making the input and output ends of
1989] COMMENTS 289
tion dealing with design characteristics of the control sys-
tem called for distinctive design features or markings to
30
minimize the possibility of incorrect assembly.
The court concluded based on this evidence and expert
testimony, that Beech should have anticipated reverse in-
stallation of the actuators and failure to prevent the prac-
tice by design or warning constituted negligence.' 3 ' The
court announced that the core concern in strict tort liabil-
ity is safety. 132 In this case, "safety" concerns placed the
burden of designing foolproof replacement parts for air-
planes on the manufacturer. The holding here suggests
that warning and design decisions made33 with only the
user in mind may fall short of adequate.
In Bell Helicopter Co. v. Bradshaw,l3 4 the jury found
against the manufacturer on the issues of design defect
and failure to warn.' 35 Evidence at trial showed that the
valves, push-pull rods, etc., different diameters whenever correct as-

sembly is important to safety. Do not apply this design policy liter-
ally to parts which can be more economically designed
interchangeable end for end, providing the intent of installation
safety is not jeopardized.
Id. at 379-80.
,-- id. at 380. The court noted the introduction into evidence of 14 C.F.R.
§ 23.685(D) (1981) (recodified as 14 C.F.R. § 23.685(d) (1988)), a FAA regulation
on design characteristics. Section 23.685(d) states: "Each element of the flight
control system must have design features, or must be distinctly and permanently
marked, to minimize the possibility of incorrect assembly that could result in mal-
functioning of the control system." 14 C.F.R. § 23.685(d) (1988).
-1 Nesselrode, 707 S.W.2d at 385.
"-2 Id. at 375 (citation omitted).
,,,In this situation, a warning placard for the pilot would not have prevented
the accident. The "user" or "consumer" in this case was the mechanic responsi-
ble for installation of the actuators. Thus, in formulating a warning or deciding
on a design modification, manufacturers must keep in mind the third parties
whose actions or mistakes affect the safety of the product.
34 594 S.W.2d 519 (Tex. Civ. App. 1979).
, Id. at 524. The Bell helicopter crashed after one of its tail rotor blades broke
off. Id. at 526. The pilot attempted the prescribed autorotation maneuver, but
that failed to prevent the serious impact which followed. Id. The helicopter in
question had a history of tail rotor blade failures. Id. The particular tail rotor
blade was prone to fatigue fractures. Id. When these fractures failed in flight, the
blade would break off, causing loss of directional control. Id. The court noted
that "[miost of these in-flight fatigue fracture failures were chiefly attributable to
failure by the respective owners and operators to comply with Bell suggested, and
FAA mandated, inspection and maintenance requirements." Id.
FAA refused to require replacement of faulty tail rotor

systems on the helicopter types in question. 3 6 Nonethe-
less, the court found that Bell could have effectively re-
moved the blades from the market had they issued a
service bulletin requiring replacement of the rotor sys-
tems. 37 Bell Helicopter knew that owners of the helicop-
ter type in question did not comply with suggested or
mandated treatment of the metal fatigue problem.13 8 The
replacement cost of the defective rotor blade system ap-
parently discouraged recommended replacement. 39 The
court stated that a consumer without knowledge of all rel-
evant safety information could not make an informed de-
cision about possible product modifications. 40
Therefore, Bell should have warned helicopter owners of
the specific dangers resulting from continued misuse of
the rotor blade system. 4 ' Thus, even where the FAA de-
cides not to require action, knowledge of a defect in the
product may require the manufacturer to adequately warn
Id. at 527. The court stated:

Bell did not have the legal power to force owners of Bell helicopters
to replace their 102 systems with 117 systems. Only the FAA has
such power and it chose not to exercise its authority when it decided
to rescind the proposed AD note which would have mandated the
replacement of all 102 systems with 117 systems.
Id.
Id. at 527-28. The court noted that Bell's subsequent service bulletin had
I7
the practical effect of removing all remaining inadequate blade systems from the
market. Id. This effect came about primarily because Bell service stations were
required to comply with the Bell-issued service bulletin. Id. at 528.
Id. at 533-34.
' Id. The record indicated that the helicopter owner decided not to replace
the tail rotor system on his helicopter because of the high cost. The recom-
mended replacement system cost approximately $2700. Id.
140 Id.
'1, Id. The court relied on the holding in Technical Chemical Co. v.Jacob, 480
S.W.2d 602 (Tex. 1972) that "where a consumer, whose injury the manufacturer
should have foreseen, is injured by a product sold without a warning, a rebuttable
presumption will arise that the consumer would have the read the warning and
acted to minimize the risks." Bradshaw, 594 S.W.2d at 534; see also Reyes v. Wyeth
Laboratories, 498 F.2d 1264, 1281 (5th Cir. 1974) ("In the absence of evidence
rebutting the presumption [stated in Technical Chemical], a jury finding that the
defendant's product was the producing cause of the plaintiff's injury would be
sufficient to hold him liable.").
19891 COMMENTS
the users. The warning provided in this case did not sup-
ply enough information to the user.
In LaBelle v. McCauley Industrial Corp.,142 a defect in the
airplane's starboard propeller caused the propeller to
break off and slice into the fuselage. 4 ' The plaintiffs suc-
cessfully brought an action against McCauley, the propel-
ler manufacturer, for negligent failure to warn of the
propeller defect.' 44 The United States Court of Appeals
for the Fifth Circuit affirmed the jury's findings, holding
that McCauley knew of the propeller defect, but did not
directly warn the aircraft owners. 4 ' McCauley argued
that by revising its service manuals to warn repair stations
of the danger, its duty to warn was satisfied. 46 Although
recognizing that in the context of the federal regulatory
scheme an aircraft manufacturer might be entitled to pre-
sume that repair stations would follow the new service
manual requirement, the Fifth Circuit declined to47 allow
McCauley to totally rely on this indirect warning.
In examining the warning provided, the Fifth Circuit
concentrated on the fact that McCauley gave no direct no-
tice to the plaintiffs. 48 Reliance on the repair stations
proved unreasonable, as McCauley knew the stations did
not perform the rounding and polishing operation re-
'4- 649 F.2d 46 (1st Cir. 1981).

14.3 Id. at 47. The accident occurred as the pilot began his take-off roll, and the
pilot was able to abort the takeoff without injury to any person. Id.
144 Id. The plaintiffs also sued New England Propeller Service, Inc. the com-
pany which overhauled the propeller. id. at 47 n.2. A default judgment was en-
tered in favor of the plaintiffs on May 24, 1977. Id.
,. Id. at 49. Fatigue cracks developed in the propeller in question, leading to
propeller failure. Id. at 48. Evidence indicated that a design defect in the form of
sharp corners on the propeller hub contributed to this failure. Id. McCauley re-
vised its service manual to require the removal of sharp corners from inside the
propeller hub during overhaul of the propeller. Id. Subsequently, McCauley re-
quested and received an airworthiness directive from the FAA, because repair sta-
tions were not performing the operation. Id. Unfortunately, this airworthiness
directive did not cover the specific type of propeller which failed on the plane in
question. Id.
141 Id. at 49.
147 Id.
148 Id.
4 9
quired by the manufacturer. 1' Thus, the warning did not
reasonably appraise the purchaser of the danger by direct
notice, or by indirect notice reasonably calculated to
reach the ultimate user. 50 Manufacturers must keep in
mind that once a problem is identified, effective warnings
must reach the pilot. The design of the propeller in this
case contained defects which rendered its operation un-
safe.' 5 ' Although the manufacturer warned the persons
responsible for repairing the defect, the warning was inef-
fective due to the repairmen's noncompliance with the
warning. Such a warning accomplished neither of its ulti-
mate goals: protection of the users and liability protection
for the manufacturer.
In the foregoing cases, the manufacturer failed to fore-
1411 Id. The court stated:

Whether McCauley discharged its duty to warn by revising its service
manual, that is, whether the revision adequately warned Plaintiffs,
was a question of fact. McCauley's assertion of a right to presume
that repair stations would follow the manual rings hollow, for, re-
specting other propeller models having the same problem, Mc-
Cauley knew in 1965 that repair stations had not been performing
the required rounding and polishing operation. Despite that knowl-
edge and the availability of alternate means of warning Plaintiffs,
such as the belatedly issued Service Bulletin 88, McCauley chose to
rely solely on whatever indirect notice might result from its service
manual revision. In such circumstances, the jury would have been
warranted in finding that McCauley's indirect notice constituted an
inadequate method of warning and thus a negligent failure to warn.
Id.
' ' Id. The court cited RESTATEMENT (SECOND) OF TORTS § 388 comment c
(1965). Id. Section 388, entitled "Chattel Known to be Dangerous for Intended
Use" provides:
One who supplies directly or through a third person a chattel for
another to use is subject to liability to those whom the supplier
should expect to use the chattel with the consent of the other or to
be endangered by its probable use, for physical harm caused by the
use of the chattel in the manner for which and by a person for whose
use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to
be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is
supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its danger-
ous condition or of the facts which make it likely to be dangerous.
Id.
LaBele, 649 F.2d at 48.
19891 COMMENTS 293
see or react to a design characteristic or user characteris-
tic that injured a consumer. Judicial findings in the
products liability area, though numerous, are vague as to
what can be done by a manufacturer to avoid such liability
in light of consumer misuse of the product. In any case, a
judgment certainly comes too late to avoid liability for
that particular accident. To avoid accidental consumer in-
jury and resulting lawsuits, manufacturers must look to
preventative measures, not postaccident corrective meas-
ures. These preventive measures should not focus solely
on the avoidance of liability, but should strive to provide
maximum protection for the average user. The field of
human factor engineering examines the interaction of
people and the products they use and attempts to predict
what might go wrong in the relationship.
IV. HUMAN FACTORS IN PRODUCT DESIGN
A. History of Human Factors Design

The pilot of a private aircraft is often the only person
on board with the training and experience required to fly
the plane. Consequently, all decisions regarding safe op-
eration of that plane must be made by the pilot alone. It
is therefore critical to the well-being of pilot, passengers,
and aircraft that the human pilot interact well with the fly-
ing machine. Human factor engineering, though implic-
itly important since primitive man first made tools and
clothing,152 became a national concern in World War
t5 3
II. The United States drafted ordinary men who, after
a few short weeks of training, flew the most complicated
1'-'Ryan, Human Factors Engineeringfor Consumer Safety: A Perspective, TRIAL, Nov.
1982, No. 11, at 86. For example, the Chicago Museum of Natural History and
the Henry Ford Museum contain exhibits showing how primitive man designed
tools, implements, utensils, clothing, and machines to best fitthe user. Id. at 86.
Ryan compares these early attempts at product design to modern efforts by stat-
ing that "[s]uch fundamental design principles as weight, balance, comfort, dura-
bility, etc., are evident in most of the early consumer products. The principle of
safety, however, was more frequently ignored, or at best crudely applied." Id.
1,11Messina, The Human Factors Expert in Tort Litigation: Lessons from "the Forgiving
Science", TRIAL, Jan. 1984, No. 1, at 38.
fighter and bomber planes ever built. The complexity of
these weapons strained the capabilities of even exper-
ienced flyers. For example, the government noticed that
some fighter planes crashed more often than others solely
due to "human error."'' 54 To try and alleviate this prob-
lem, early training and personnel programs concentrated
on the operator. 55 Efforts were made to anticipate errors
and correct the behavior through more thorough training
and education. 56 After these attempts failed to reduce
the accidents and injuries, design engineers realized the
57
impossibility of modifying people to fit machinery.
Thus, the design of the machine itself had to consider the
physiological and neurological limitations of a human be-
ing. 15 "Human error" was redefined as "design-induced
error.' 59 The "unreasonably dangerous" machine or
product was redefined as one which failed to provide for
normal, anticipatable human behavior. 60
B. Human Reactions in Emergencies

How quickly can a human react to an emergency or life-
threatening situation? This question is of vital concern to
aircraft manufacturers, since the air will not hold a plane
aloft indefinitely while the pilot decides his course of ac-
tion. The assumption of reaction time impacts design de-
cisions perhaps more than any other factor.' 6'
,.4Bliss, Human Factors Specialists: What They Can Tell Attorneys About Design
Problems, TRIAL, Oct. 1984, No. 10, at 52. Women employed to replace the new
soldiers, sailors, and pilots at their former jobs experienced similar difficulties
with inappropriately designed industrial machines. Id.
'. Messina, supra note 153, at 38.
'I Id.
Bliss, supra note 154, at 52.
Id. In the discipline of "Human Factors Specialists," the question became,
"Is this machine unreasonably dangerous in design from a human factors point of
view? To answer 'Yes', the machine must have design characteristics that induce
human error, and the errors must cause accidents or create situations that will
lead to accidents." Id.
"' Messina, supra note 153, at 39. Messina phrased the new definition as a
machine or product design which "does not allow for normal, anticipatable
human behavior to occur without tragic results." Id.
"l Bliss, supra note 154, at 52-53.
1989] COMMENTS 295
Reaction to danger is not instantaneous with recogni-
tion. The brain must recognize that a problem exists,
identify the proper response, and command the body ac-
cordingly. 6 2 Unfortunately, the time period may lengthen
if the person sees the source of danger but does not rec-
ognize it as dangerous, or if the person cannot decide how
to avoid the danger. 6 '
Estimates of human reaction time vary widely. One au-
thor used 0.7 seconds as a standard,' 64 but another cited
the American Association of State Highway Officials' 2.5
second value as appropriate reaction time. 65 One study
which presented drivers with completely unexpected dan-
166
gers recorded reaction times of 5.7 to 9.1 seconds.
Clearly, extremely short reaction time assumptions as in
Berkebile v. Brantly Helicopter Corp. 167 demand too much
from the limited capabilities of a user. Since machines
can move, calculate, and break down much faster than a
human can react, manufacturers need to be aware that
some design flaws will result in disaster no matter how
many warnings are provided. For example, a placard
warning that the pilot only has one-fourth second to
feather a propeller is useless. No human could react that
quickly.
A continuing concern with the operation of an aircraft
is the multitude of tasks a pilot must perform in order to
-2 Ryder, Human Factors Engineeringin Accident Litigation:A Primer For Nontechnolo-

gists, l0J. PROD. LIAB. 51, 52 (1987). Ryder uses the example of the driver of a car
"who decides (on a conscious or subconscious level) that a given obstacle presents
a threat of collision, and who reacts by stepping on the brake." Id.
1 Id. A car driver must decide whether to brake, turn left, turn right, or accel-
erate. id. Indecision may in some cases extend the reaction past the point neces-
sary to avoid the danger. Id.
' Id.
,. Bliss, supra note 154, at 53.

Id. The 1978 U.S. Government study required drivers to respond to unex-
pected situations necessitating change in speed or direction. Id.
1,17 225 Pa. Super. 349, 311 A.2d 140 (1973) (the plaintiff alleged the pilot had
only one-third second to begin autorotation in the event of an emergency), aff'd,

462 Pa. 83, 337 A.2d 893 (1975). For a discussion of Berkebile, see supra notes 102-
115 and accompanying text.
keep the aircraft aloft. 168 The pilot of a private aircraft
must concern himself with the weather at his location as
well as his destination and all points in between. He must
decide his course, deviations from that course, and must
concern himself with the airworthiness of the plane, its
fuel supply, weight, center of gravity, passenger safety,
airspeed, engine r.p.m., landing gear position, trim, en-
gine temperature, and whether another plane will sud-
denly appear from behind a cloud bank.' 69 To aid the
pilot in some of these decisions, the aircraft manufacturer
supplies instrumentation, warnings, and instructions.
Ideally, these items would enable the pilot to make better
decisions. Unfortunately, the instruments sometimes give
false readings, the warnings are subject to misinterpreta-
tion, or the placement of warning placards causes confu-
sion. 17 The components of an aircraft cockpit are well
designed and as accurate as possible, given modern tech-
nology. Still, the primary complaint from pilots is the lay-
out of the instrumentation and the trouble they have
distinguishing certain7 functional instruments during
emergency situations. ' '
- Bliss, supra note 154, at 53. The author uses the example of "car operators
who drive on strange freeways during rush hour hav[ing] to deal with many stim-
uli simultaneously. Thousands of normally competent drivers have had accidents
as they watched for lane changes and speed changes by other vehicles, read road
signs, and prepared for their own lane changes and turn-offs." Id.
-1, D. BEATY, THE HUMAN FACTOR IN AIRCRAFT ACCIDENTS, 26-30 (1969).
,71 Id. at 29-30.
7 Id. at 31. Referring to the problem of distinguishing certain instruments,
the author stated:
Altimeters, airspeed indicators and other instruments have figures of
almost identical size and shape. The rows of circuit breakers [refer-
ring here to large commercial airliners of the 1960's], laid out sym-
metrically and identically like a huge Halma board on the roof of
some aircraft, appear almost to invite errors of identification-and
so do the switches, particularly those of the pitot heaters.
Id. It has also been noted:
Flying . . [all but the simplest aircraft] . . . has been described as
"hours of boredom interspersed with moments of sheer panic."
The panic phase, of course, is the crisis, such as engine failure on
takeoff, when there is far too much to do and too little time to do it
in .... It is possible for work overload combined with marginal sen-
sory discrimination to cause an accident-for instance, a difficult ap-
1989] COMMENTS 297
Foreseeable misuse of a product, whether involuntary
or intentional, concerns manufacturers as much as if not
more than normal usage. Humans, by nature, are impa-
tient. As a user becomes more familiar with a product, he
finds ways to shortcut safety procedures in order to
achieve a satisfactory level of performance from the
machine while personally expending a minimal amount of
effort. 72 Safety features or procedures tend to slow down
efficient operation and are sometimes circumvented when
the operator is rushed or impatient. 71 In some instances,
involuntary human reflexes may place the operator in
danger of physical harm. Where design features or warn-
ings fail to anticipate such reflex reactions, the user may
suffer injury simply because his instincts caused certain
behavior. 74 Because of this human tendency to misuse a
product, manufacturers find themselves more and more at
risk for user injuries. The following section suggests
warnings designed to provide the user with essential in-
formation without overloading his processing capacity,
while at the same time discouraging misuse.
C. Warning Clarity, Intensity & Placement

Section 104(C) of the Uniform Products Liability Act
lists "clarity and conspicuousness of the warnings or in-
structions that were provided" as one of the factors in a
warning liability question. 75 A warning is inadequate if it
proach can distract a pilot from monitoring the aircraft glide slope,
resulting in touchdown short of the runway.
Bliss, supra note 154, at 53.
172 Bliss, supra note 154, at 54.
-7'See, e.g., Kroon v. Beech Aircraft Corp., 628 F.2d 891 (5th Cir. 1980) (pilot
neglected to preflight his aircraft, thus failing to discover gust locks still in place
on the aircraft) (discussed supra at notes 50-62 and accompanying text).
174 See, e.g., McAdams v. Pak-Mor Mfg., 602 S.W.2d 374, 380 (Tex. Civ. App.
1980) (A sanitation worker lost his hand when he attempted to push spilling trash
back into the truck's compactor. A human factors expert testified that the worker's
action was instinctive. The expert described the design of the compactor as a
"trap in that when the stuff falls [out] ... you try to push it back in and you really
can't help your reaction. This is possibly the key reason to guard it.").
17-5 UNIFORM PRODUcrs LIABILITY AcT § 104(C)(2)(d) (1979). The other factors
listed by this section are:
is not sufficiently intense to communicate the gravity of
the danger. 76 Once the duty to warn arises, the manufac-
turer must decide what type of warning to use under the
77
circumstances. 1
The effectiveness of a warning label depends on the
product user's perception. FMC Corporation of Chicago
developed guidelines for a product hazard communica-
tion system.' 7 8 This system combines symbols with recog-
79
nizable meanings and normal words of warning.
Although simplistic in nature due to the relative simplicity
of the machines, the suggestions as to clarity and the
straightforwardness of the- communicated message indi-
cate a clear understanding of human factor engineering.
FMC recommends a warning label consisting of three ele-
ments: (1) a signal word, (2) a symbol or pictogram, and
(3) descriptive words. 8 0 The signal word indicates to the
user the nature and extent of the hazard sought to be
avoided by using readily recognizable words with defined
meanings."" Next, a visual message in the form of a
(a) The manufacturer's ability, at the time of manufacture, to be

aware of the product's danger and the nature of the potential harm;
(b) The manufacturer's ability to anticipate that the likely product
user would be aware of the product's danger and the nature of the
potential harm; (c) The technological and practical feasibility of pro-
viding adequate warnings and instructions; . . .[and] (e) The ade-
quacy of the warnings or instructions that were provided.
UNIFORM PRODUCTS LIABILITY ACT § 104(C)(2)(a), (b), (c), (e).
,7,B. Wrubel, Liability For Failure to Warn or Instruct, Product Liability of
Manufacturers; Prevention and Defense 105, 170-171 (1986) (bound collection of
symposium speeches, available in SMU Law School Library); see also, Reese v. Mer-
cury Marine Div., 793 F.2d 1416, 1422 (5th Cir. 1986) ("An adequate warning
must be reasonably calculated to reach the ultimate user of a product. Such a
warning must also convey a fair indication of the nature and extent of the dan-
ger." (citations omitted)).
117 Ross, Legal and PracticalConsiderationsfor the Creation of Warning Labels and In-
struction Books, 4J. PROD. LIAB. 29 (1981).

,78Id. at 39.
171Id.
I'l Id. Ross describes the function by stating, "The signal word or hazard inten-
sity level identifies the nature and extent of the hazard by using words with de-
fined meanings." Id.
'1' Id. These words and definitions are recommended by FMC Corporation:
"1) DANGER - Immediate hazard which will result in severe personal injury or
death. 2) WARNING - Hazard or unsafe practices which could result in severe
1989] COMMENTS 299
pictogram relates the hazard. 8 2 Ideally, this symbol por-
trays the hazard and the effect on the user of that haz-
ard. 83 FMC research found that an interactive pictogram
worked better than a display of only one element. 84 The
final part of the suggested warning label tells the user how
to avoid the85hazard by giving instructions or outlining
procedures.
A warning design and decision criteria perhaps better
suited to aircraft comes from the United States Air Force.
The Air Force restricts placement of warning placards to
limited circumstances. 8 6 The guidelines state:
Fix only the following instructions and markings in the
cockpit:
A. Instrument identification and range markings.
B. Control identification and position markings.
C. Radio call signs.
D. Emergency procedures. Restrict this category to pro-
cedures, which (if not properly followed immediately) will
result in the loss of life or property.
E. Ground rescue instructions.
1 87
F. Emergency exits.
At least one commentator argues that these guidelines are
far superior to the FAA's unpredictable, often inconsis-
tent process.' 8 8 Critics of the Air Force guidelines argue
that military pilots know their aircraft better than civilian
pilots, and therefore do not require as many warnings.' 8 9
personal injury or death. 3) CAUTION - Hazard or unsafe practices which could

result in minor injury or product or property damage." Id. at 39-40 (emphasis in
original).
1"2 Id. at 40.
Id. An example of a pictogram suitable for aircraft might be a picture of a

box striking a person in the back of the head as part of a warning to firmly secure
the load.
- Id. (The portrayal of the hazard and the interaction of the person with it was
more effective than depiction of only one).
Id. at 41.
's, Miller, supra note 2, at 104.
1"7 Id.
is"Id. Miller criticizes the FAA's lack of guidelines for warning placards, calling
for the FAA to adopt the Air Force guidelines. Id.
Iss Id.
Manufacturers, however, should be able to rely on a cer-
tain degree of care on the part of the civilian pilot when
determining warning placement. To overcome this civil-
ian unfamiliarity with the airplane, pilots might face the
requirement of a thorough check ride with an instructor
for each model of airplane the pilot desires to fly.' 90 Air-
plane manufacturers themselves could make familiariza-
tion schools available to prospective users of their
airplanes. 19'
Whatever the warning used, several human factors im-
pact its effectiveness. Factors such as user identifica-
tion,' 9 2 normal use (expected and reasonably
foreseeable), abnormal use (unexpected and not reason-
ably foreseeable), and foreseeable third-party interference
with the aircraft's operation must enter into warning deci-
sions. 193 The actual placement of the warning depends on
its urgency, user characteristics
94
(height, eyesight, etc.),
and the viewing angle.'
V. CONCLUSION
Placards, instructions, warning labels and emergency

procedures attempt to aid the pilot of an aircraft during
flight. The form, placement and number of these aids all
impact their effectiveness. The human mind and body,
however, possess limitations which can hinder effective
operation of an aircraft. Manufacturers must take these
limitations into account not only in designing airplanes,
but also in designing and placing warnings and instruc-
tions. Courts must look to the same principles in their
review of a manufacturer's decision to market a product.
"' Id. Currently, a pilot need only be "checked out" in a plane based on the
engine configuration. See generally 14 C.F.R. § 61.105-107 (1988). See infra notes
199-200 and accompanying text for a more detailed examination of private pilot
licensing requirements.
"" Miller, supra note 2, at 104.
,1'2Ryan, supra note 152, at 88. User identification includes age, skill, intelli-
gence, strength, memory, perception, and fatigue. Id.
Id.
I,
,, Ross, supra note 177, at 41.
1989] COMMENTS 301
Without guidelines for manufacturers and courts, the ulti-
mate loser is the consumer. Primarily due to products lia-
bility suits, Cessna ceased manufacturing its incredibly
popular piston-engined airplanes in 1986. 5 Light air-
craft deliveries in 1987 numbered only 1,085 compared to
17,811 in 1978.196 The average insurance premium paid
by aircraft manufacturers rose from $2,000 per plane in
1972 to between $60,000 and $100,000 in 1988. t9 7 Per-
haps the courts and manufacturers should look in a differ-
ent direction for solutions to the safety and liability
concern.
Many aircraft accidents involve pilot error as much as, if
not more than, design defects. Pilots, unfamiliar with the
aircraft and its unique operation characteristics, make
mistakes which often result in tragedy. 98 Under the cur-
rent FAA regulations, certification in a particular aircraft
category enables the pilot to fly a large number of very
different airplanes. 19 9 For example, a rating of "single-
engine land" enables the pilot to fly aircraft ranging from
fixed speed propellers and gear assembly to variable pitch
'" Light Aircraft-Pulling Out of Nose Dive, 308 ECONOMIST 72 (June 18, 1988).
Id. These statistics define light aircraft as "single engine to executive turbo-
prop." Id.
197 Id.
11mSee, e.g., Stevens v. Cessna Aircraft Co., 634 F. Supp. 137 (E.D. Pa. 1986)
(The pilot died when he engaged in a needlessly risky maneuver on a landing
attempt, causing the engine to stall. The court found that the pilot had never
flown that model of aircraft before, and the crash was solely due to the pilot's
inattention, carelessness or panic.).
-. The categories of certification and ratings are found in 14 C.F.R. § 61.5
(1988). Section 61.5 provides:
(a) The following certificates are issued under this part:
(1) Pilot certificates; (i) Student pilot; (ii) Private pilot;
(iii) Commercial pilot; (iv) Airline transport pilot.
(2) Flight instructor certificates.
(b) The following ratings are placed on pilot certificates (other than
student pilot) where applicable:
(1) Aircraft category ratings: (i) Airplane; (ii) Rotorcraft;
(iii) Glider; (iv) Lighter-than-air.
(2) Airplane class ratings: (i) Single-engine land; (ii) Multiengine
land; (iii) Single-engine sea; (iv) Multiengine sea.
(3) Rotorcraft class ratings: (i) Helicopter; (ii) Gyroplane.
(3) Lighter-than-air class ratings: (i) Airship; (ii) Free balloon.
turboprop airplanes with retractable landing gears. The
sophistication difference in operating the airplanes within
a category enables a pilot to fly airplanes beyond his abil-
ity. As airplanes become more and more sophisticated,
the FAA and pilot associations will be forced to restruc-
ture the licensing requirements for prospective pilots. To
overcome what is often simply unfamiliarity with the oper-
ation of the airplane, the FAA should mandate more train-
ing to obtain a pilot's license2 0 0 and narrow the ranges of
certifications. For example, a requirement that a pilot
make five full-stop takeoff and landings in each type air-
craft with an instructor would go a long way towards elim-
inating pilot error. Manufacturers, however, should keep
in mind that human error is only part of the equation.
The most qualified pilot in the sky cannot overcome a se-
rious design defect.
21"1 The regulations dealing with pilot training are found at 14 C.F.R. § 61.101-
.111 (1988).

Placards, Warning Labels & (And) Operation Manuals: An Aircraft Manufacturer's Duty To Warn

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uk brought to you by CORE

Journal of Air Law and Commerce

Placards, Warning Labels & (and) Operation

Follow this and additional works at: https://scholar.smu.edu/jalc

A QUICK GLANCE into the cockpit of a private air-

designed to allow smooth recovery from any problem sit-

2 Miller, Placards, Placards Everywhere, AOPA PILOT, Jan. 1987, at 103.

COLATOR, WING, AND (IF EQUIPPED) RESERVOIR TANK

II. THE AIRCRAFT MANUFACTURER'S DUTY TO WARN IN

As a general rule, a manufacturer assumes liability when

is See Ryder, Human Factors Engineering in Accident Litigation: A Primer For

injures the ultimate user. 2 ' Although the manufacturer is

21 RESTATEMENT (SECOND) OF TORTS § 402A (1965). This section of the Re-

ments that "a flaw in a product is defined as an abnormality or a condition that

note 23, at 694-98.

ous if a reasonable man would not market the product

BiLITY ACT, § 104(C)(1) (1979), suggesting that to call a product unreasonably

III. CASE LAW

when the danger, or potentiality of danger, is generally known and

A. Cases Declining to Find a Duty to Warn or Finding That

-7 760 F.2d 901 (8th Cir. 1985).

plane's fuel system was defective, as were the warnings

the first step in the landing preparation process.48 After

In Kay v. CessnaAircraft Co. ,63 the United States Court of

548 F.2d 1370 (9th Cir. 1977).

seeable misuse of the aircraft.7 °

appeals relied heavily on Beech's compliance with Civil

weight calculation warnings so that they might "second-

B. Cases Imposing Liability For Failure to Warn or Failure to

I'Stevens, 115 Cal. App. 3d at 431, 170 Cal. Rptr. at 926.

lo., Id. at 349, 311 A.2d at 142.

efforts to warn by stating:

markings having a direct and important bearing on safe operation of

fective 1 22 The Court of Appeals and Supreme Court of

'"2 Id. at 375.

valves, push-pull rods, etc., different diameters whenever correct as-

FAA refused to require replacement of faulty tail rotor

Id. at 527. The court stated:

'4- 649 F.2d 46 (1st Cir. 1981).

1411 Id. The court stated:

IV. HUMAN FACTORS IN PRODUCT DESIGN

A. History of Human Factors Design

1'-'Ryan, Human Factors Engineeringfor Consumer Safety: A Perspective, TRIAL, Nov.

B. Human Reactions in Emergencies

-2 Ryder, Human Factors Engineeringin Accident Litigation:A Primer For Nontechnolo-

,. Bliss, supra note 154, at 53.

only one-third second to begin autorotation in the event of an emergency), aff'd,

C. Warning Clarity, Intensity & Placement

(a) The manufacturer's ability, at the time of manufacture, to be

struction Books, 4J. PROD. LIAB. 29 (1981).

personal injury or death. 3) CAUTION - Hazard or unsafe practices which could

Id. An example of a pictogram suitable for aircraft might be a picture of a

Placards, instructions, warning labels and emergency

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