MEMO TO:
Alexsei Demo US
RESEARCH ID:
#4000942072e1c6
JURISDICTION:
State
STATE/FORUM:
California, United States of America
ANSWERED ON:
November 23, 2022
CLASSIFICATION:
Torts

Issue:

Does the manufacturer of a turkey deep fryer have a duty to warn that turkeys should not be placed in the fryer unless completely thawed?

Facts:

For the past several years, the Joneses have deep fried their Thanksgiving turkey with great success. The turkey comes out perfectly crispy and moist; it is the most delicious turkey anyone in the family has ever tasted. Papa Jones is the turkey master and has always taken extreme care in ensuring the safety of the procedure. Because he takes great pride in his Thanksgiving turkeys, Papa Jones usually purchases a fresh turkey from a local organic farm. However, due to the turkey shortage this year, Papa Jones was not able to reserve a fresh turkey before they sold out. As a result, he had to buy a frozen turkey from the grocery store. He began thawing the turkey a couple days before Thanksgiving, but found that there were still some ice crystals in the body cavity when he went to remove the giblets on Thanksgiving morning. Not thinking it a big deal, he proceeded to fry the turkey in his usual manner. At first everything seemed normal, but about 30 minutes into the cooking the turkey suddenly exploded, sending hot oil all over the backyard. Some of the hot oil hit Papa Jones and he suffered burns. He later learned that this can occur when a turkey is not fully thawed before being deep fried. Upon re-reviewing the fryer’s user manual, Papa Jones found no warning against frying partially frozen turkeys.

Conclusion:

A plaintiff may seek recovery in a product liability case either on the theory of strict liability in tort or on the theory of negligence. (Trejo v. Johnson, 13 Cal.App.5th 110, 220 Cal.Rptr.3d 127 (Cal. App. 2017))

Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. (O'Neil v. Crane Co., 12 Cal. Daily Op. Serv. 561, 135 Cal.Rptr.3d 288, 2012 Daily Journal D.A.R. 464, 266 P.3d 987, 53 Cal.4th 335 (Cal. 2012))

Under the failure to warn theory of product liability, even though a product is faultlessly made, it may nevertheless be deemed "defective" if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product was supplied without such a warning. (Trejo v. Johnson, 13 Cal.App.5th 110, 220 Cal.Rptr.3d 127 (Cal. App. 2017))

In general, a product seller will be strictly liable for failure to warn if a warning was feasible and the absence of a warning caused the plaintiff's injury. The reasonableness of the seller's failure to warn is immaterial in the strict liability context. (Webb v. Special Elec. Co., 202 Cal.Rptr.3d 460, 370 P.3d 1022, 63 Cal.4th 167 (Cal. 2016))

Conversely, to prevail on a claim for negligent failure to warn, the plaintiff must prove that the seller's conduct fell below the standard of care. If a prudent seller would have acted reasonably in not giving a warning, the seller will not have been negligent. (Webb v. Special Elec. Co., 202 Cal.Rptr.3d 460, 370 P.3d 1022, 63 Cal.4th 167 (Cal. 2016))

However, under the obvious danger rule, there is no need to warn of known risks under either a negligence or strict liability theory. If the manufacturer reasonably believes the user will know or should know about a given product's risk, the manufacturer need not warn the user of that risk. (Webb v. Special Elec. Co., 202 Cal.Rptr.3d 460, 370 P.3d 1022, 63 Cal.4th 167 (Cal. 2016))

The obvious danger rule is an objective test, and the courts do not inquire into the user's subjective knowledge in such a case. Even if a user was truly unaware of a product's hazards, that fact is irrelevant if the danger was objectively obvious. (Johnson v. American Standard, Inc., 179 P.3d 905, 43 Cal.4th 56, 74 Cal.Rptr.3d 108 (Cal. 2008))

Oil being flammable is an obvious danger known to anyone who has ever used cooking oil. (Hernandez v. Hotpoint Elec. Heating Co., 2021 Cal. Super. LEXIS 1829 (Cal. Super. Ct. January 28, 2021))

California law does not impose a duty to warn about dangers arising entirely from another manufacturer's product, even if it is foreseeable that the products will be used together. The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm, either because the defendant's own product contributed substantially to the harm, or because the defendant participated substantially in creating a harmful combined use of the products. (O'Neil v. Crane Co., 12 Cal. Daily Op. Serv. 561, 135 Cal.Rptr.3d 288, 2012 Daily Journal D.A.R. 464, 266 P.3d 987, 53 Cal.4th 335 (Cal. 2012))

In the unpublished decision of Hornyak v. National Presto Indus., 1995 U.S. Dist. LEXIS 5360, 1995 WL 239104 (N.D. Ill. April 20, 1995), the United States District Court for the Northern District of Illinois noted that a deep fryer's sole function is to deep fry food, and in order to deep fry food, hot oil must be utilized.

No decisions were identified that discussed whether a manufacturer of a turkey deep fryer had a duty to warn that turkeys should not be placed in the fryer unless completely thawed; however, the following federal court decision from Georgia discussing product liability in relation to deep frying frozen food may be instructive.

In the unpublished decision of Biles v. Tyson Foods, Inc., 1996 U.S. Dist. LEXIS 22070, 1996 WL 684134 (N.D. Ga. August 20, 1996), the plaintiff argued that she was injured because the cooking instructions on the defendant's frozen chicken wings failed to warn her sufficiently about the hazards associated with deep frying the frozen wings in oil over an open flame. The United States District Court for the Northern District of Georgia concluded that the danger of cooking food in hot oil over an open flame is plainly an open and obvious danger and that a reasonable jury could not conclude otherwise. Consequently, the Court held that the defendant did not have a duty to warn the plaintiff about the potential dangers of cooking with hot oil, and granted the defendant's motion for summary judgment.

Law:

In Trejo v. Johnson, 13 Cal.App.5th 110, 220 Cal.Rptr.3d 127 (Cal. App. 2017), the California Second District Court of Appeal explained that product liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn. A plaintiff may seek recovery in a product liability case either on the theory of strict liability in tort or on the theory of negligence. Under either theory, in order to recover from a manufacturer, a plaintiff must prove that a defect caused the injury. Under a negligence theory, a plaintiff must also prove the additional element that the defect in the product was due to the negligence of the defendant (at 125): 

Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn. (Anderson v. Owens–Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995, 281 Cal.Rptr. 528, 810 P.2d 549 (Anderson).) "[A] plaintiff may seek recovery in a 'products liability case' either 'on the theory of strict liability in tort or on the theory of negligence.' [Citations.] The rules of products liability 'focus responsibility for defects, whether negligently or nonnegligently

[220 Cal.Rptr.3d 140]

caused, on the manufacturer of the completed product.' [Citation.] Thus, under either a negligence or a strict liability theory of products liability, to recover from a manufacturer, a plaintiff must prove that a defect caused injury. [Citations.] Under a negligence theory, a plaintiff must also prove 'an additional element, namely, that the defect in the product was due to negligence of the defendant.' [Citations.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478-479, 110 Cal.Rptr.2d 370, 28 P.3d 116 (Merrill); Brown v. Superior Court (1988) 44 Cal.3d 1049, 1056, 245 Cal.Rptr. 412, 751 P.2d 470 (Brown) ["Strict liability differs from negligence in that it eliminates the necessity for the injured party to prove that the manufacturer of the product which caused injury was negligent."].) " 'Ordinarily, strict liability, which was developed to ease a claimant's burden of proof, requires proof of fewer elements than negligence, making a positive verdict on the latter difficult to explain if strict liability cannot be found.' " (1 Owen & Davis on Prod. Liab. (4th ed. 2016) § 5:29, fn. 25.)

Under the failure to warn theory of product liability, even though a product is faultlessly made, it may nevertheless be deemed "defective" if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product was supplied without such a warning. Whether the absence of a warning makes a product defective involves several factors, including a consumer's normal expectations of how the product will perform, degrees of simplicity or complication in its operation or use, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury, and the feasibility and beneficial effect of including such a warning (at 125):

The failure to warn theory of products liability is based on the premise that " 'a product, although faultlessly made, may nevertheless be deemed "defective" under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.' [Citation.]" (Anderson, supra, 53 Cal.3d at pp. 995-996, 281 Cal.Rptr. 528, 810 P.2d 549.) "Whether the absence of a warning makes a product defective involves several factors, including a consumer's normal expectations of how a product will perform; degrees of simplicity or complication in its operation or use; the nature and magnitude of the danger to which the user is exposed; the likelihood of injury; and the feasibility and beneficial effect of including such a warning. [Citation.]" (Oxford, supra, 177 Cal.App.4th at p. 717, 99 Cal.Rptr.3d 418.)

In Webb v. Special Elec. Co., 202 Cal.Rptr.3d 460, 370 P.3d 1022, 63 Cal.4th 167 (Cal. 2016), the California Supreme Court explained that a product can be defective where the product is dangerous because it lacks adequate warnings or instructions. In California, liability for failure to warn is conditioned on the manufacturer's actual or constructive knowledge of the risk. In general, a product seller will be strictly liable for failure to warn if a warning was feasible and the absence of a warning caused the plaintiff's injury. Reasonableness of the seller's failure to warn is immaterial in the strict liability context. Conversely, to prevail on a claim for negligent failure to warn, the plaintiff must prove that the seller's conduct fell below the standard of care. If a prudent seller would have acted reasonably in not giving a warning, the seller will not have been negligent (at 180-181): 

The third type of defect “is a product that is dangerous because it lacks adequate warnings or instructions.” (

[63 Cal.4th 181]

Brown, supra, 44 Cal.3d at p. 1057, 245 Cal.Rptr. 412, 751 P.2d 470; see Barker, supra, 20 Cal.3d at p. 428, 143 Cal.Rptr. 225, 573 P.2d 443.)“ Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products.” (Johnson, supra, 43 Cal.4th at p. 64, 74 Cal.Rptr.3d 108, 179 P.3d 905.) A warning informs consumers about hazards of which they are unaware, so that they can avoid the product or minimize its danger by careful use. (Ibid.) In California, as in a majority of jurisdictions, liability for failure to warn is conditioned on the manufacturer's actual or constructive knowledge of the risk. (Anderson, supra, 53 Cal.3d at p. 1000, 281 Cal.Rptr. 528, 810 P.2d 549; Brown, at p. 1066, 245 Cal.Rptr. 412, 751 P.2d 470.) The duty to warn applies to all entities in a product's chain of distribution. (See Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 575, 90 Cal.Rptr.3d 414.) Thus, like a manufacturer, a raw material supplier has a duty to warn about product risks that are known or knowable in light of available medical and scientific knowledge. (See Anderson, at pp. 1000, 1002, 281 Cal.Rptr. 528, 810 P.2d 549.)

The “known or knowable” standard arguably derives from negligence principles (see Anderson, supra, 53 Cal.3d at pp. 1000–1001, 281 Cal.Rptr. 528, 810 P.2d 549 ), and failure to warn claims are generally “ ‘rooted in negligence’ to a greater extent than” manufacturing or design defect claims. (

[202 Cal.Rptr.3d 470]

Id. at p. 1002, 281 Cal.Rptr. 528, 810 P.2d 549; see Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1111–1112, 56 Cal.Rptr.2d 162, 920 P.2d 1347.) Unlike those other defects, a “ ‘warning defect’ relates to a failure extraneous to the product itself” and can only be assessed by examining the manufacturer's conduct. (Anderson, at p. 1002, 281 Cal.Rptr. 528, 810 P.2d 549.) These principles notwithstanding, California law recognizes separate failure to warn claims under both strict liability and negligence theories.6 In general, a product seller will be strictly liable for failure to warn if a warning was feasible and the absence of a warning caused the plaintiff's injury. (Blackwell v. Phelps Dodge Corp. (1984) 157 Cal.App.3d 372, 377, 203 Cal.Rptr. 706; see Anderson, at p. 1002, 281 Cal.Rptr. 528, 810 P.2d 549.) Reasonableness of the seller's failure to warn is immaterial in the strict liability context. (Anderson, at pp. 1002–1003, 281 Cal.Rptr. 528, 810 P.2d 549.) Conversely, to prevail on a claim for negligent failure to warn, the plaintiff must prove that the seller's conduct fell below the standard of care. (Id. at p. 1002, 281 Cal.Rptr. 528, 810 P.2d 549.) If a prudent seller would have acted reasonably in not giving a warning, the seller will not have been negligent. (Id. at p. 1003, 281 Cal.Rptr. 528, 810 P.2d 549.)

Under the obvious danger rule, there is no need to warn of known risks under either a negligence or strict liability theory. If the manufacturer reasonably believes the user will know or should know about a given product's risk, the manufacturer need not warn the user of that risk. The sophisticated user defense is a particular application of the obvious danger rule. A product manufacturer or supplier is not liable for failing to warn a sophisticated user if the user knew or should have known of the product's risk in light of their training or skill (at 182-183): 

Several defenses have developed to mitigate liability in appropriate circumstances. For example, under the “obvious danger” rule, “there is no need to warn of known risks under either a negligence or strict liability theory.” (Johnson, supra, 43 Cal.4th at p. 67, 74 Cal.Rptr.3d 108, 179 P.3d 905.) This defense is based on a Restatement provision stating that warnings are unnecessary if a product's dangers are readily observable and the supplier has reason to expect the user will perceive them. (Rest.2d Torts, § 388, subd. (b), com. k, pp. 306–307; see Johnson, at p. 66, 74 Cal.Rptr.3d 108, 179 P.3d 905.) “Courts have interpreted section 388, subdivision (b), to mean that if the manufacturer reasonably believes the user will know or should know about a given product's risk, the manufacturer need not warn that user of that risk. [Citations.] This is ‘especially [true] when the user is a professional who should be aware of the characteristics of the product.’ ” (Johnson, at p. 66, 74 Cal.Rptr.3d 108, 179 P.3d 905.)

The sophisticated user defense is a particular application of the obvious danger rule. We recognized this defense in Johnson, explaining that “sophisticated users need not be warned about dangers of which they are already aware or should be aware.” (

[202 Cal.Rptr.3d 471]

Johnson, supra, 43 Cal.4th at p. 65, 74 Cal.Rptr.3d 108, 179 P.3d 905.) Because sophisticated users already know, or should know, about the product's dangers, the manufacturer's failure to warn is not the legal cause of any harm. (Ibid.) A sophisticated user's knowledge is thus the equivalent of prior notice. (Ibid.) The defense serves public policy, because requiring warnings of obvious or generally known product dangers could invite consumer disregard and contempt for warnings in general. (Id. at p. 70, 74 Cal.Rptr.3d 108, 179 P.3d 905.)

The sophisticated user defense does not require a user's actual awareness of potential hazards. Rather, a product manufacturer or supplier is not liable for failing to warn a sophisticated user if the user knew or should have known of the product's risk in light of his training or skill. (Johnson supra, 43 Cal.4th at p. 71, 74 Cal.Rptr.3d 108, 179 P.3d 905.) “The focus of the defense ... is whether the danger in question was so generally known within the trade or profession that a manufacturer should not have been expected to provide a warning specific to the group to which plaintiff belonged.” (Id. at p. 72, 74 Cal.Rptr.3d 108, 179 P.3d 905.) Although other states have adopted different rules, California's sophisticated user defense applies to both strict liability and negligent failure to warn claims. (Id. at pp. 71–73, 74 Cal.Rptr.3d 108, 179 P.3d 905.)

The sophisticated user defense has been applied when the end user of a product can be expected to know about potential risks due to the user's

[63 Cal.4th 183]

extensive training or professional experience. For example, in Johnson we concluded that an air conditioning equipment manufacturer was shielded from liability for failing to warn a highly trained and certified technician about the risks of exposure to a commonly used refrigerant. (Johnson, supra, 43 Cal.4th at pp. 61–62, 74, 74 Cal.Rptr.3d 108, 179 P.3d 905.) Somewhat different questions arise when the manufacturer or supplier sells a product to a sophisticated purchaser, which then passes the product on to other users. In such cases, the product's immediate purchaser has actual or imputed knowledge of potential risks, but the product's ultimate users may not.

In Johnson v. American Standard, Inc., 179 P.3d 905, 43 Cal.4th 56, 74 Cal.Rptr.3d 108 (Cal. 2008), the California Supreme Court explained that under the "should have known" standard in the sophisticated user test, there will be some users who were actually unaware of the dangers. The same can be said of the obvious danger rule; obvious dangers are obvious to most, but are not obvious to everyone. The obvious danger rule is an objective test, and the courts do not inquire into the user's subjective knowledge in such a case. Even if a user was truly unaware of a product's hazards, that fact is irrelevant if the danger was objectively obvious (at 119-120): 

A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger. It would be nearly impossible for a manufacturer to predict or determine whether a given user or member of the sophisticated group actually has knowledge of the dangers because of the infinite number of user idiosyncrasies. For example, given users may have misread their training manuals, failed to study the information in those manuals, or simply forgotten what they were taught. However, individuals who represent that they are trained or are members of a sophisticated group of users are saying to the world that they possess the level of knowledge and skill associated with that class. If they do not actually possess that knowledge and skill, that fact should not give rise to liability on the part of the manufacturer.

[74 Cal.Rptr.3d 120]

Under the "should have known" standard there will be some users who were actually unaware of the dangers. However, the same could be said of the currently accepted obvious danger rule; obvious dangers are obvious to most, but are not obvious to absolutely everyone. The obvious danger rule is an objective test, and the courts do not inquire into the user's subjective knowledge in such a case. In other words, even if a user was truly unaware of a product's hazards, that fact is irrelevant if the danger was objectively obvious. (3 American Law of Products Liability (3d ed. 1993) Warnings, § 32.66, p. 113-114; Bowersfield v. Suzuki Motor Corp. (E.D.Pa.2000) 111 F.Supp.2d 612, 622; see Solen v. Singer (1949) 89 Cal. App.2d 708, 714, 201 P.2d 869 [there is no obligation "`to give warning of an obvious danger or one which should have been perceived by the invitee'" (italics added) ]; see also Simmons v. Rhodes & Jamieson, Ltd. (1956) 46 Cal.2d 190, 194, 293 P.2d 26.) Thus, under the sophisticated user defense, the inquiry focuses on whether the plaintiff knew, or should have known, of the particular risk of harm from the product giving rise to the injury.

In the unpublished decision of Hernandez v. Hotpoint Elec. Heating Co., 2021 Cal. Super. LEXIS 1829 (Cal. Super. Ct. January 28, 2021), the plaintiff's child accidentally knocked a glass bottle of oil onto a stove, upon which it shattered, spilled its contents, and caused a fireball. The plaintiff argued that had she known that oil was flammable, she would not have stored it above the stove.

The Los Angeles County Superior Court explained that in regards to the plaintiffs' failure to warn claim, the Court found no causal link between the lack of a warning and the plaintiff's injury. Oil being flammable is an obvious danger known to anyone who has ever used cooking oil. Therefore, a warning was not required for the plaintiff to be aware of this fact (at 9): 

Regarding the failure to warn claim, the Court found no causal link between the lack of a warning and Juanita's injury. The only warning provided by Plaintiffs was a standard one that stated: "Caution: Oil will burn if overheated. Do not leave unattended while heating. If oil smokes, reduce heat. If oil catches fire, turn off heat and cover pot until cool. Do not put water on hot or flaming oil. Do not pour hot oil back into this container." Presently, Epifania declares that if she had known that oil was flammable, she would not have stored it above the stove. (Decl. Hernandez, ¶ 13.) However, oil being flammable is an obvious danger known to anyone who has ever used cooking oil. Epifania did not require a warning to be aware of this fact.

In O'Neil v. Crane Co., 12 Cal. Daily Op. Serv. 561, 135 Cal.Rptr.3d 288, 2012 Daily Journal D.A.R. 464, 266 P.3d 987, 53 Cal.4th 335 (Cal. 2012), the California Supreme Court explained that, generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. The requirement's purpose is to inform consumers about a product's hazards and faults of which they are unaware so that they can refrain from using the product altogether or evade the danger by careful use. However, a manufacturer's duty to warn does not extend to hazards arising exclusively from other manufacturers' products (at 351):

“Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. (Anderson [v. Owens–Corning Fiberglas Corp.], supra, 53 Cal.3d at p. 1003 [281 Cal.Rptr. 528, 810 P.2d 549].) The requirement's purpose is to inform consumers about a product's hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use. (Ibid.) Typically, under California law, we hold manufacturers strictly liable for injuries caused by their failure to warn of dangers that were known to the scientific community at the time they manufactured and distributed their product. [Citations.]” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64–65, 74 Cal.Rptr.3d 108, 179 P.3d 905.) However, we have never held that a manufacturer's duty to warn extends to hazards arising exclusively from other manufacturers' products. A line of Court of Appeal cases holds instead that the duty to warn is limited to [135 Cal.Rptr.3d 300] risks arising from the manufacturer's own product.

Where the intended use of a product inevitably creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings. However, California law does not impose a duty to warn about dangers arising entirely from another manufacturer's product, even if it is foreseeable that the products will be used together. The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm, either because the defendant's own product contributed substantially to the harm, or because the defendant participated substantially in creating a harmful combined use of the products (at 361-362): 

Moreover, as noted, California law does not impose a duty to warn about dangers arising entirely from another manufacturer's product, even if it is foreseeable that the products will be used together. Were it otherwise, manufacturers of the saws used to cut insulation would become the next targets of asbestos lawsuits. Recognizing a duty to warn was appropriate in Tellez–Cordova because there the defendant's product was intended to be used with another product for the very activity that created a hazardous situation. Where the intended use of a product inevitably creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings. Conversely, where the hazard arises entirely from another product, and the defendant's product does not create or contribute to that hazard, liability is [53 Cal.4th 362] not appropriate. We have not required manufacturers to warn about all foreseeable harms that might occur in the vicinity of their products. “From its inception, ... strict liability has never been, and is not now,

[266 P.3d 1005]

absolute liability. As has been repeatedly expressed, under strict liability the manufacturer does not thereby become the insurer of the safety of the product's user. [Citations.]” [135 Cal.Rptr.3d 309] (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 733, 144 Cal.Rptr. 380, 575 P.2d 1162.)

4. Conclusion

We reaffirm that a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer's product. The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm, either because the defendant's own product contributed substantially to the harm (see Tellez–Cordova, supra, 129 Cal.App.4th at p. 585, 28 Cal.Rptr.3d 744), or because the defendant participated substantially in creating a harmful combined use of the products (see DeLeon, supra, 148 Cal.App.3d at p. 343, 195 Cal.Rptr. 867).

In the unpublished decision of Hornyak v. National Presto Indus., 1995 U.S. Dist. LEXIS 5360, 1995 WL 239104 (N.D. Ill. April 20, 1995), the United States District Court for the Northern District of Illinois noted that a deep fryer's sole function is to deep fry food, and in order to deep fry food, hot oil must be utilized (at 7-8):

In the present case, Hornyak was [*8]  injured while attempting to move a deep fat fryer which Hornyak had just used to deep fry food. Certainly, the risks inherent in spilling a deep fryer containing hot oil are open and obvious. The FryDaddy's sole function is to deep fry food, and in order to deep fry food, hot oil must be utilized. When the user attempts to move the fryer immediately after use without first allowing the hot oil to cool, the risk of spilling hot oil is clearly heightened. The risk is even more extreme when the user attempts to pick up the fryer in the manner in which Hornyak did here, i.e., with the handle in the horizontal position and balancing the weight of the fryer with the sideways handle.

No decisions were identified that discussed whether a manufacturer of a turkey deep fryer had a duty to warn that turkeys should not be placed in the fryer unless completely thawed; however, the following decisions from other jurisdictions discussing product liability in relation to deep fryers and frozen food may be instructive. 

In the unpublished decision of Cochran v. Brinkmann Corp., 2009 U.S. Dist. LEXIS 114814 (N.D. Ga. December 9, 2009), the plaintiffs argued that the turkey fryer was unstable and could tip over if the gas hose was impacted and that the defendant failed to warn of this danger. The United States District Court for the Northern District of Georgia found that the danger that existed was open and obvious to any person who knew the purpose and use of the turkey fryer. Thus, the Court concluded that the defendant did not have a duty to warn of this danger. Furthermore, the Court found that in this case, the person using the turkey fryer ignored the "on-product" warnings, which if heeded, would have prevented his grandchild's injuries (at 20-27): 

Plaintiffs also allege failure to warn claims. Plaintiffs' defective design and failure to warn claims "are separate and distinct claims arising from different duties owed by [a] manufacturer to consumers." Battersby v. Boyer, 241 Ga. App. 115, 117, 526 S.E.2d 159 (1999). Even when a product is not defectively designed, a manufacturer that "has reason to anticipate that danger may result from a particular use" of the product "may be required to give adequate warning of the danger." Id. Thus, "a duty to warn can arise even if a product is not defective." Id.

To establish that the warnings were defective, Plaintiffs must show that Defendant had a duty to warn, that it breached that duty, and that the breach was the proximate cause of the injury. Wheat, 46 F. Supp. 2d at 1363. "Whether [*21] a duty to warn exists . . . depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user's knowledge of the danger." Hunter v. Werner Co., 258 Ga. App. 379, 384, 574 S.E.2d 426 (2002).

"Georgia law imposes no duty on a manufacturer to warn of danger associated with the use of its product if that danger is open or obvious." Pillsbury Co., Inc. v. West Carrollton Parchment Co., Inc., 210 Fed. Appx. 915, 920 (11th Cir. 2006) (quoting Sheckells v. AGV-USA Corp., 987 F.2d 1532, 1534 (11th Cir. 1993)). "[T]here is no duty to warn 'where it appears that the person using the product should know of the danger, or should in using the product discover the danger.'" Id. (quoting Sheckells, 987 F.2d at 1534). Whether a [*22] danger is open and obvious is determined from an objective, not subjective, point of view. Ream Tool Co. v. Newton, 209 Ga. App. 226, 229, 433 S.E.2d 67 (1993). The plaintiff asserting a failure to warn claim bears the burden of demonstrating that the danger causing injury was latent, not patent. Weatherby v. Honda Motor Co., 195 Ga. App. 169, 171, 393 S.E.2d 64 (1990), overruled on other grounds. "While in many cases, the obvious and common nature of a peril will be a question for the jury, it may be determined as a matter of law in plain and palpable cases." Lamb v. Sears, Roebuck & Co., 1 F.3d 1184, 1190 (11th Cir. 1993).

Defendant contends that the dangers posed by the turkey fryer were open and obvious and therefore it did not have a duty to warn of the dangers. Indeed, Plaintiffs do not argue that the turkey fryer's dangers were latent. Plaintiffs simply state that the turkey fryer was unstable and could tip over if the gas hose was impacted. See Pls' Response, 23. These dangers, and others, were patent.

When in use, a turkey fryer consists of a stand connected to a propane gas tank by a hose, which is connected to an open flame burner that heats oil or water in an open pot. The oil or water is heated to very [*23] high temperatures to cook food, including the raw poultry intended to be cooked in this case. The dangers associated with the turkey fryer here are inherent, objectively open and obvious, and no reasonable jury could conclude otherwise, nor would they require a warning for the obvious danger at issue in this case. See, e.g.Biles v. Tyson Foods, Inc., No. 1:95-cv-777, 1996 U.S. Dist. LEXIS 22070, at *9 (N.D. Ga. Aug. 20, 2006) (danger of cooking food in hot oil over an open flame is plainly open and obvious); see also Lamb, 1 F.3d 1184, 1190 (11th Cir. 1993) (danger of small child drowning in a swimming pool is open and obvious); Moore v. ECI Mgmt., 246 Ga. App. 601, 607, 542 S.E.2d 115 (2000) (danger of miswiring an electrical appliance is open and obvious to an installer); Weatherby, 195 Ga. App. at 172 (danger of riding a motorcycle without a cap on the gas tank is open and obvious).

Assuming Defendant had a duty to warn, which the Court concludes it did not, Plaintiffs must then show that Defendant breached that duty and the breach was the proximate cause of Austin Cochran's injuries. Where a duty to warn exists, it may be breached by: (1) failing to adequately communicate the warning to the ultimate [*24] user, or (2) failing to provide an adequate warning of the product's potential risks. Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75, 460 S.E.2d 532 (1995); Thornton v. E.I. DuPont De Nemours & Co., Inc., 22 F.3d 284, 289 (11th Cir. 1994). Plaintiffs contend that Defendant did not adequately communicate the dangers associated with the turkey fryer because there were not any warnings included on the fryer itself. Specifically, Plaintiffs' expert witness on warning standards, Kenneth Laughery, opined that "there needs to be a warning system and the warning system needs to include an on-product warning" which "gives enough information to either provide the adequate warning information or to cue the person that there's a need for that kind of information and motivate them and direct them to a secondary source like an owner's manual." Deposition of Kenneth Laughery ("Laughery Dep."), 71, 72.

This opinion ignores important facts that are present here -- specifically that there was a warning on the device as configured when the accident at issue in this case occurred. The purpose of a warning is to provide information to allow the user of a product to avoid harm or injury. An "on-product" warning to avoid  [*25] the injury claimed here was present. It is undisputed that the pot used by Mr. Cochran had two clear warnings, which if heeded, would have prevented the injury alleged. The warnings were:

1. Keep Children and Pets Away at All Times.

2. Never Leave Pot Unattended While Cooking with Oil or Water.

Both warnings were ignored. Not only was Austin Cochran -- a young child -- present, but he was allowed to sit on the picnic table above the pot of oil Mr. Cochran had heated to a high temperature. It is undisputed the oil temperature was 350 degrees when Mr. Cochran left Austin sitting alone above the fryer. It is also undisputed that Mr. Cochran failed to heed the warning to fill the pot only to the fill line. He exceeded by 100% the amount of oil to be placed in the pot. That the above warnings were not on the turkey fryer stand manufactured by Defendant, but on the pot placed atop the fryer stand, is irrelevant. The facts are that there was an "on-product" warning. Plaintiffs cannot show that Defendant's failure to provide warnings on the fryer stand, as opposed to the pot used, was the proximate cause of Austin's injuries. "On-product" warnings were present, but ignored.

Plaintiffs' failure to warn argument is unsupported and discredited by the facts of this case. Here, the danger that existed was open and obvious to any person who knew the purpose and use of the turkey fryer. Moreover, Mr. Cochran ignored the "on-product" warnings, which if heeded, would have prevented Austin's injuries. The undisputed facts here are that had Mr. Cochran not left the fryer unattended by going into his home, Austin Cochran would not have jumped off the picnic table to follow him and this accident would not have occurred. The Court, having viewed the undisputed facts in the light most favorable to Plaintiffs and taking the record as a whole, concludes the evidence could not lead a rational trier of fact to find for Plaintiffs. There being no genuine issue for trial, Defendants are entitled to [*27] summary judgment. Scott, 550 U.S. at 380.

In the unpublished decision of Biles v. Tyson Foods, Inc., 1996 U.S. Dist. LEXIS 22070, 1996 WL 684134 (N.D. Ga. August 20, 1996), the plaintiff argued that she was injured because the cooking instructions on the defendant's frozen chicken wings failed to warn her sufficiently about the hazards associated with deep frying the frozen wings in oil over an open flame. The United States District Court for the Northern District of Georgia noted that neither party identified precedent closely following the facts of this case and the Court was unable to locate an analogous case. Nonetheless, the Court concluded that the danger of cooking food in hot oil over an open flame is plainly an open and obvious danger and that a reasonable jury could not conclude otherwise. Consequently, the Court held that the defendant did not have a duty to warn the plaintiff about the potential dangers of cooking with hot oil, and granted the defendant's motion for summary judgment (at 6-10):

Before analyzing defendant's motion for summary judgment, the Court must identify under which products liability theory plaintiff proceeds. Georgia law generally recognizes three categories of product defects, including manufacturing defects, design defects, and marketing/packaging defects. Banks v. ICI Americas, Inc., 264 Ga. 732, 739, 450 S.E.2d 671, 672 (Ga. 1994). In her response to defendant's motion for summary judgment, plaintiff identifies her product liability claim as a marketing or packaging defect claim. See Plaintiff's Response to Defendant's Motion [*7] for Summary Judgment, p. 13 ("Plaintiff was injured by the cooking instructions, not by the frozen nature of the product.") In other words, Biles maintains that she was injured because Tyson's directions were inadequate and because Tyson failed to warn her sufficiently about the hazards associated with deep frying the frozen WingFlingers in oil over an open flame. 

 [*8] A manufacturer is subject to liability for failure to warn if it "(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 dangerous condition or of the facts which make it likely to be dangerous." Greenway v. Peabody Int'l Corp., 163 Ga. App. 698, 703, 294 S.E.2d 541, 545-46 (Ga. Ct. App. 1982) (quoting Restatement (Second) of Torts § 388). On the other hand, "a manufacturer has no duty to warn of open and obvious dangers," Lamb v. Sears, Roebuck & Co., 1 F.3d 1184, 1189-90 (11th Cir. 1993), and defendant argues that the dangers posed by deep frying over an open flame are open and obvious. If the danger is open and obvious, Tyson is entitled to judgment at law. Id. at 1190.

To determine whether a danger is open and obvious under Georgia law the subjective understandings and perceptions of the injured party are not considered. Instead, the determination is based on an objective view of the product and its dangers. Id. Therefore, [*9] the proper inquiry is whether the danger of deep frying the wings in oil over an open-burner would be objectively obvious. In most cases, the jury must make this determination, but "it may be determined as a matter of law in plain and palpable cases." Id. Tyson argues that this is such a case.

The Eleventh Circuit has held as a matter of law that the danger of a small child drowning in a swimming pool is an obvious danger which prohibits a failure to warn suit against the manufacturer of the pool. Id. Similarly, the danger of injury from a fire caused by riding an off-road motorcycle without a cap on the gas tank is obvious and prohibited an injured plaintiff from recovering. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 172, 393 S.E.2d 64, 67-8 (Ga. Ct. App. 1990). Unfortunately, neither party has identified precedent which closely follows the facts of this case, and the Court has similarly been unable to locate an analogous case. Yet, after careful consideration, the Court concludes that the danger of cooking food in hot oil over an open flame is plainly an open and obvious danger and that a reasonable jury could not conclude otherwise. Much like the danger of [*10] leaving children unattended near any body of water, the danger of household grease fires are well known. Consequently, Tyson did not have a duty to warn plaintiff about the potential dangers of cooking with hot oil, and defendant's motion for summary judgment is GRANTED. 

Authorities:
Trejo v. Johnson, 13 Cal.App.5th 110, 220 Cal.Rptr.3d 127 (Cal. App. 2017)
Webb v. Special Elec. Co., 202 Cal.Rptr.3d 460, 370 P.3d 1022, 63 Cal.4th 167 (Cal. 2016)
Johnson v. American Standard, Inc., 179 P.3d 905, 43 Cal.4th 56, 74 Cal.Rptr.3d 108 (Cal. 2008)
Hernandez v. Hotpoint Elec. Heating Co., 2021 Cal. Super. LEXIS 1829 (Cal. Super. Ct. January 28, 2021)
O'Neil v. Crane Co., 12 Cal. Daily Op. Serv. 561, 135 Cal.Rptr.3d 288, 2012 Daily Journal D.A.R. 464, 266 P.3d 987, 53 Cal.4th 335 (Cal. 2012)
Hornyak v. National Presto Indus., 1995 U.S. Dist. LEXIS 5360, 1995 WL 239104 (N.D. Ill. April 20, 1995)
Cochran v. Brinkmann Corp., 2009 U.S. Dist. LEXIS 114814 (N.D. Ga. December 9, 2009)
Biles v. Tyson Foods, Inc., 1996 U.S. Dist. LEXIS 22070, 1996 WL 684134 (N.D. Ga. August 20, 1996)