February 13, 2020
Benjamin D. Jackson, Devin R. Bates
Litigation, Products Liability
Does Arkansas law recognize a post-sale duty to warn? In a nutshell, no. While Arkansas state courts have not expressly considered the issue, all legal authority indicates that the answer is indeed “no.” To support this answer, the relevant sources of authority are summarized below.
Federal Court Case Law. Federal court cases applying Arkansas law have largely all been in agreement that “[u]nder Arkansas law, the liability of the manufacturer in a products liability action is determined by whether the product was defective at the time the product was placed on the market.” Harris v. Great Dane Trailers, Inc., 234 F.3d 398, 400 (8th Cir. 2000); see also White v. Ford Motor Co., 312 F.3d 998, 1019 (9th Cir. 2002), opinion amended on denial of reh’g, 335 F.3d 833 (9th Cir. 2003) (summarizing that imposition of post-sale duty to warn is a matter for state law, and citing Arkansas as a state where such duty does not exist).
Arkansas Authority. Arkansas state court cases have not had the occasion to expressly answer this question in the negative. However, the relevant section of the Arkansas Code contemplates only “the state of scientific and technological knowledge available to the manufacturer or supplier at the time the product was placed on the market, rather than at the time of the injury.” Ark. Code Ann. § 16-116-204(a)(l). Further, in considering the Arkansas jury instructions where the issue of time-of-sale vs. post-sale is considered at all, the instructions do not support a post-sale duty, and largely support that liability is determined at time-of-sale. Additionally, Arkansas products liability actions frame the issue of duty as being set at the time of manufacture or sale. See e.g., Larson Mach., Inc. v. Wallace, 268 Ark. 192, 200, 600 S.W.2d 1, 5 (1980) (framing issue as whether fertilizer spreader “was in a defective condition, which was unreasonably dangerous to [plaintiff] at the time it was distributed.”).
Restatement. The applicable section of the Restatement does not recognize such a legal theory. Restatement (Third) of Torts: Prod. Liab. § 10 (1998) (“One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller’s failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller’s position would provide such a warning.”) Although this section of the Restatement has not been expressly adopted in Arkansas, Arkansas courts often look to the restatements for guidance on murky legal issues. As such, this source of authority can prove persuasive.
This article is part of the Mitchell Williams Products Liability Series explaining the nuances of how Arkansas Products Liability law is interpreted and practiced.
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