February 20, 2013 Articles

Advertencia: Florida Silent on Duty to Warn in Spanish

By Jaret J. Fuente and David L. Luck

In 2011, Florida's population exceeded 19 million people—almost 23 percent of whom were of Hispanic or Latino origin, and almost 27 percent of whom spoke languages other than English at home. U.S. Census Bureau. State & County QuickFacts: Florida. Between 2000 and 2010, Florida's total population increased by 17.6 percent compared with a 57.4 percent increase in its population of Hispanic or Latino origin. U.S. Census Bureau, "The Hispanic Population: 2010," by Sharon R. Ennis, Merarys Rios-Vargas, and Nora G. Albert. 2010 Census Briefs, C2010BR-04 (May 2011). It is also worth noting, however, that Florida's official language is English. Art. II, § 9(a), Fla. Const.  

Despite those figures, and the continuously growing Hispanic population in the state, there is a dearth of Florida state-court case law on the issue of whether product manufacturers and sellers have a duty to warn in Spanish. Thus far, however, Florida has not imposed on product manufacturers or sellers a general duty to warn in Spanish or in any language other than English. Further, federal precedent originating in Florida appears not to impose such a duty, absent certain special circumstances. 

The most recent Florida-based federal decision on the issue is Farias v. Mr. Heater, Inc., 757 F. Supp. 2d 1284 (S.D. Fla. 2010), aff'd, 684 F.3d 1231 (11th Cir. 2012). Farias was a subrogation action in which the plaintiff sought money damages from the manufacturer and seller of propane heaters to reimburse her homeowner's insurer for payments made for losses caused by a house fire. Specifically, she alleged that a heater manufactured and sold by the defendants ignited a fire inside her home, causing damages later paid for by her insurer. 

The Farias plaintiff, a Cuban-born resident of Miami, Florida, and naturalized U.S. citizen who spoke and read limited English, purchased outdoor propane heaters for use inside of her home. The manual for the heaters contained the following warnings (among others) in English only:

DO NOT ALLOW ANYONE WHO HAS NOT READ THESE INSTRUCTIONS TO ASSEMBLE, LIGHT, ADJUST OR OPERATE THE HEATER

DO NOT LEAVE HEATER UNATTENDED OR IN OPERATION WHILE SLEEPING

GENERAL HAZARD WARNING: ONLY PERSONS WHO CAN UNDERSTAND AND FOLLOW THE INSTRUCTIONS SHOULD USE OR SERVICE THIS HEATER

WARNING: NOT FOR HOME OR RECREATIONAL USE

WARNING: This heater is an unvented appliance and MUST be used ONLY in a well ventilated area. NEVER attempt to operate the heater inside any vehicle, camper, or enclosure.

THIS HEATER MUST BE USED WITH ADEQUATE VENTILATION. Do not use in a tightly enclosed area. Two openings directly to the outdoors MUST be provided.

WARNING: To avoid injury or property damage never allow clothing, tents or other combustible material within 24" of the heater. This heater must be located at least 32" above the floor level when in use. Never operate the heater while sleeping.

The plaintiff acknowledged that she knew the heaters included product warnings and that she understood the warnings indicated danger, but she testified that she did not speak much English and did not care to have an English speaker explain the warned-of dangers to her. Despite those warnings, the plaintiff argued that graphics on the boxes depicted individuals using the heaters inside a garage and a warehouse and that, as a result, she assumed it was safe to use the heaters inside her home, which she did. Within several hours of falling asleep, the plaintiff was awakened by smoke and fire ignited by one of the heaters. The fire caused more than $300,000 in damage to her home. The plaintiff sued the manufacturer and seller of the heaters for negligence and strict liability and contended that they were obligated to provide warnings in both English and Spanish. 

The district court for the Southern District of Florida determined that there is no general common-law duty to warn in Spanish, found that the warnings provided with the heaters were accurate, clear, and unambiguous, and granted summary judgment in favor of the manufacturer and seller. The plaintiff appealed, and the Eleventh Circuit affirmed. In doing so, the Eleventh Circuit noted its consideration of the totality of the written warnings and graphic depictions, and found that the English warnings adequately notified consumers of the apparent, potential harmful consequences of indoor use of the heaters, and rejected the plaintiff's contention that the graphic depictions were ambiguous. The Eleventh Circuit also specifically distinguished an earlier Southern District memorandum order, upon which the Farias plaintiff relied. 

Twenty years earlier, in Stanley Industries, Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992), the Southern District denied a product manufacturer's summary judgment motion with respect to the adequacy of an English-only warning label. In Stanley, a fire occurred at a plant in Miami, Florida, because of the spontaneous combustion of rags soaked in a linseed oil product that two Spanish-speaking plant employees were using. One of the two plant employees could not read or comprehend English, and the other had difficulty understanding the meaning of English words. The product's label contained warnings concerning spontaneous combustion and disposal of rags, but the warnings were only in English, and there were no graphics, symbols, or pictographs on the label. Both employees testified they would have sought more information on the proper use of the product had there been warnings in Spanish concerning the product's flammability.

The property owner sued the manufacturer and the retailer, in part, for negligent failure to warn, and argued in opposition to summary judgment that the manufacturer and the retailer assumed a duty to fairly and adequately warn Spanish-speaking product users because they had advertised and promoted the product in Spanish in various Hispanic media in Miami and, therefore, should have reasonably foreseen that Spanish-speaking people would use the product. The district court denied the manufacturer's summary judgment motion because the manufacturer and retailer had targeted the Hispanic population by regularly and actively engaging in general marketing on Hispanic television and radio and in a Spanish-language newspaper. The court found that under those circumstances, it was for a jury to decide whether a warning, to be adequate, must contain language other than English or pictorial warning symbols, and noted the pervasive presence of foreign nationals in the Miami workforce whose native language is not English.

Very little occurred on this issue in Florida between Stanley and Farias, but what did occur was more in line with Farias and resulted in a finding that there is generally no common-law duty to warn in Spanish. In Medina v. Louisville Ladder, Inc., 496 F. Supp. 2d 1324 (M.D. Fla. 2007), the Middle District of Florida case on which the Farias court relied, a Spanish-speaking plaintiff who did not understand much English purchased an attic ladder, which included English instructions and warnings. Instead of having someone translate or explain the instructions and warnings, the plaintiff and his handyman who also did not understand English ignored the product information and, as a result, improperly installed the ladder, which collapsed and injured the plaintiff. The plaintiff sued the product manufacturer and retailer and contended that Spanish warnings were required because the product was sold in a region with a high concentration of Spanish-speaking people. Unlike Stanley, however, there was no indication that the defendants advertised the ladder in Spanish and, based on those facts, the district court determined that Florida does not impose a common-law duty to warn in Spanish and refused to follow Stanley.

While no Florida court has held that there is a general common-law duty to warn in Spanish, at least one has noted the existence of multilingual warnings in determining that a product's warnings were accurate, clear, and unambiguous. In Pinchinat v. Graco Children's Products, Inc., 309 F. Supp. 2d 1141 (M.D. Fla. 2005), a six-month-old child left unattended in a stroller died from accidental asphyxiation when her body slid through the stroller's leg openings and her head became trapped between the stroller's tray and seat. The owner's manual for the stroller contained explicit warnings in English, French, and Spanish, including: "NEVER LEAVE CHILD UNATTENDED … AVOID SERIOUS INJURY from falling or sliding out … CHILD MAY SLIP INTO LEG OPENINGS AND STRANGLE …." The stroller itself also contained a sewn-on label with similar warnings in English, French, and Spanish. In granting the manufacturer's summary judgment motion as to warnings claims, the district court not only reasoned that the warnings were accurate, clear, and unambiguous, but also noted that the warnings were in English, French, and Spanish, and that plaintiff understood two of those languages (English and French). 

While Florida has not yet imposed on product manufacturers or sellers a general duty to warn in Spanish, or in any language other than English, the case law suggests that it would be prudent to include Spanish-language warnings on products that are actively marketed to Spanish-speaking people. This is particularly true in light of the Eleventh Circuit's affirmance in Farias. In a unanimous opinion, the court distinguished, but did not disapprove, the reasoning expressed in Stanley. Thus, following the Eleventh Circuit's decision in Farias, the rule in Florida appears to be that while there is no general common-law duty to warn in languages other than English, if a product manufacturer or distributor specifically targets a minority language group by advertising the product in that group's primary language, then the manufacturer or distributor may thereby have assumed a duty to provide product information, including warnings, in that same language in addition to English.

Keywords: litigation, products liability, duty to warn, Spanish language, Florida


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