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Humble Sand & Gravel9/17/2004
easonably safe. Were we to apply section 2(c) as literally as Humble argues section 388 should be applied, then Humble would certainly be liable to Gomez because he would have avoided the foreseeable risk of silicosis had Humble warned that inhaling silica dust could result in death. Gomez's testimony, which the jury could and obviously did believe, establishes that he would have seen such a warning, just as he saw the warning that Humble did print on its bags, would have understood it, and would never have continued working as a blaster. But the comments to section 2, like those to section 388, show that the stated rule cannot be so mechanically applied. Comment i explains:
There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings. The standard is one of reasonableness in the circumstances. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user. Thus, when the purchaser of machinery is the owner of a workplace who provides the machinery to employees for their use, and there is reason to doubt that the employer will pass warnings on to employees, the seller is required to reach the employees directly with necessary instructions and warnings if doing so is reasonably feasible. Although comment i is much shorter than comment n, the reporters' notes indicate that no substantive difference was intended:
The Restatement, Second, of Torts ยง 388, Comment n, utilizes the same factors set forth in Comment i in deciding whether a warning should be given directly to third persons. It has been relied on by numerous courts. Comment i distills down to three non-exclusive factors the considerations set out at length in comment n for determining when a warning to an intermediary is sufficient. A number of courts, beginning with the federal district court in Goodbar v. Whitehead Bros. in 1984, a case involving silica products, have identified six non-exclusive factors in comment n:
(1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burdens imposed on the supplier by requiring that he directly warn all users.
We should point out that neither comment n, comment i, nor any of the cases applying them suggests that the scope of a supplier's duty to warn the ultimate users of its product can be determined simply by counting up the factors for and against allowing a warning to be given to an intermediary instead.
Rather, the various considerations must be weighed against each other, the measure being reasonableness in the circumstances, as both comments state and as we said in Alm.
Gomez contends that it is never reasonable to excuse a supplier from warning ultimate users directly about product dangers whenever a warning is feasible. The determinative factor in Alm, Gomez argues, was that it was utterly impossible for a bottle capping machine manufacturer to warn soft drink consumers with whom it had no means of direct contact of the danger of exploding bottle caps. That, Gomez continues, is why Alm analogized Alcoa's position to a bulk supplier, who likewise has no packaging or other medium on which to place a warning that will reach the ultimate users of the product. But Alm cannot fairly be read so
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