THE BLOG
09/02/2014 04:08 pm ET Updated Oct 31, 2014

A Warning About Warnings

I started thinking about when a professional you contact for advice should warn you about something and is responsible if something that goes wrong without that warning to avoid something or to recognize the risks involved in doing something. Whether the professional thinks the warning not necessary because someone should know not to do or because the warning might mean losing a sale, there are some situations where a professional from whom you are seeking advice should give you a fair warning. And without that warning, he or she might be responsible to some degree should things go wrong, because you didn't get that waning.

What led me to think about this is my experience at an auto repair service. Without mentioning any names, it was a service center authorized to service certain brands of cars. I brought in my old Toyota station wagon with about 144,000 miles on it to see if it would be safe to take it on an extended trip, and I explained to the service manager that this is why I was having the inspection. After the manager recommended the Toyota's minor inspection, for which I paid, the manager told me about the cost of fixing a broken fan for the air conditioning system, which I would need for this trip to someplace very hot during the summer. Again, after getting the manager's reassurance that the car would be safe, I agreed to these repairs. But the manager did not warn me of the risks of driving an old car in the summer about 500 miles through about 250 miles of desert, though had he done so, I wouldn't have driven my car there and would have flown and rented a car.

But then, despite the manager's assurances the car would be safe and no warnings about the potential risks, the car broke down three days after I arrived due to a radiator system which needed to be repaired. But after I got an assessment at an auto repair chain that even if I had the radiator system fixed, there was a 50-50 chance the gasket and engine could break down. So ultimately, afraid that even with additional costs for repairs, the car could break down and I could be stuck in the hot desert, with deadly results, I bought a new car I hadn't planned to get and couldn't really afford.

Later when I asked about getting a refund for the air conditioning system repairs which I wouldn't have gotten if I was warned of the risks of taking my car on the trip, the owner turned me down, telling me it wasn't their fault if my old car broke down. But if the owner and manager doubted the ability of an old car to make such a trip, didn't the manager have the responsibility to warn me of the risk, since I had made it clear that my reason for the inspection was to be sure my car was safe for the long drive and wouldn't have had it fixed to drive it there in that case. And if the manager should have warned me, should there be any responsibility beyond the cost of the repairs I wouldn't have gotten, such as for my time and expenses after the car broke down and some of the cost of a new car which I otherwise wouldn't have bought but did to get home safely.

This question of a duty to warn is a responsibility in many fields, whether it is considered just a matter of ethical practice or it becomes a legal requirement. For example, after a doctor examines a patient and identifies certain medical conditions, the doctor will not only advise the patient about what to do, including prescribing certain medicines, but will warn the patient about engaging in certain activities. For example, a doctor might advise a patient with a heart condition not to engage in certain strenuous activities or tell a patient with an allergy to avoid certain foods. One study from Canada even found that doctor's warnings not to drive to chronically ill patients who were suffering from such conditions as sleep apnea, high blood pressure, Parkinson's disease resulted in a 45% reduction in the likelihood of getting into a crash and suffering injuries needing emergency care.

In real estate sales, sellers and agents are required to warn buyers of serious problems in the house that aren't obvious and affect the value of the house, such as termites and links in a sewer line, and if there is no warning that is considered misrepresentation, and if later found out, the buyer could back out of the sale or sue for damages

Likewise, manufacturers have a duty to warn about potential dangers resulting from using the product, such as described in "Post-Sale Duty to Warn" report by the Products Liability Committee of the American Bar Association. Without such a warning, a manufacturer can incur "significant fines from government agencies, bad publicity, new accidents, an increased risk of liability for compensatory and punitive damages, decreased goodwill with suppliers and vendors, an increased risk of recalls, and decreased sales to consumers." And tire dealers similarly have a duty to warn their customers if a tire is unsafe, since they have a higher level of tire expertise than the average consumer.

In turn, these requirements to warn in many fields under many conditions raises the question in my own case and in the auto repair industry generally - does the manager or sales person have a duty to warn a consumer who comes to that repair center for an inspection to determine whether the car should be used for some purpose, and if so, what repairs might be done. Given these other situations where a warning is ethically or legally required or a matter of regular practice, it would seem that a manager or owner would have a duty to warn, as well as recommend the appropriate services to fix a car. Then, if he or she doesn't give that warning, he or she has some responsibility for what happens when things go wrong as a result, which might minimally be reimbursing a client for repairs undertaken because the warning wasn't given to additional damages for additional repairs, the time spent in making those repairs, or even some contribution to the cost of additional travel or the purchase of a new car arising from what occurs due to a failure to warn.

So what do you think? What kind of duty to warn should auto repair owners, managers, and salespeople have? And what kind of responsibilities should they have when damages due to their failure to warn occur for clients who come to them for their expertise and advice?