ABSTRACT
Most jurisdictions recognize some variation of the so-called "open and obvious" defense to a claim that the manufacturer breached its duty to warn. This defense posits that there exists no duty to warn of obviously hazardous conditions. Under negligence, warranty, and strict tort liability, the informational duties of the manufacturer of toxic products are to provide adequate warnings as to reasonably foreseeable risks. Accordingly, a manufacturer has no duty to warn of toxic hazards that were unknown at the time the product was distributed into commerce. While toxic tort claims may involve warranty claims sounding in express warranty or the implied warranty of fitness for a particular purpose, a toxic tort claim including a claim of failure to provide adequate warnings will typically target breach of the implied warranty of merchantability. In a majority of jurisdictions, the defendant seller is liable in strict tort products liability where it poses an unreasonable risk of injury due to inadequate warnings or instructions.
