We observed some while ago that at least some courts have questioned the "heeding presumption," which presumes that if a manufacturer gave a warning, a consumer would have followed it. The Nevada Supreme Court, for example, in rejecting a heeding presumption, declared:
"it is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. [W]arnings are everywhere in the modern world and often go unread or, where read, ignored."
More proof is found in the sad case of the California driver convicted of manslaughter after rear-ending a stopped car. Cell phone records, said the DA's press release, revealed that the defendant "had been using her cell phone to conduct three separate bill paying transactions in the final four minutes before the collision," and was, at the moment of the accident, "in the middle of paying her cell phone bill via text messaging." The stopped vehicle "burst into flames as a result of the collision"; and bystanders who attempted to pull the driver from the burning vehicle were unsuccessful.
What a warning! Compared to this, the most vivid written warning is as nothing. If human beings can be depended upon to heed warnings, surely this driver, whatever else she might do, would never text while driving again.
And yet at her sentencing, the prosecutor revealed "that only months after the crash, Matis-Engle had been spotted twice by a California Highway Patrol officer texting on her cell phone while driving." "This collision," said the prosecutor, "had absolutely no impact on her. . . ."
Obviously, some people heed warnings. It is increasingly obvious, however, that many don't. Perhaps it is time to consider whether the law should treat warnings based on actual human beings, rather than mythical, idealized ones.
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