Products Liability Law Reporter

The Eighth Circuit Court of Appeals held that a district court had not erred in giving a sophisticated user instruction in a products liability suit brought by consumers injured from using wet ready-mix concrete.

Ryan Davis, a tile salesman and distributor who had significant experience using a product called “thinset” to install tiles, called Simon Contractors and ordered wet ready-mix concrete to be delivered to his home, where he and his friend Anthony Crane were installing a garage floor. While working with the concrete without personal protective equipment, Davis and Crane suffered chemical burns and required extensive medical care.

Davis and Crane sued Simon Contractors, alleging failure to warn about the dangers of wet concrete. The plaintiffs also alleged that the ready-mix concrete was defective because it was not provided to them with a warning. The jury found for the defense. On appeal, the plaintiffs argued that the district court had erred in instructing the jury as to the sophisticated user defense.

Affirming, the Eighth Circuit noted that Nebraska has long recognized the sophisticated user defense to a warning defect claim. Under the defense, there is no duty to warn if a user knows or reasonably should know about the potential danger—especially when the user is a professional who should be aware of the product’s characteristics. Although there is no evidence the plaintiffs had prior experience with wet concrete, the court found, Davis had testified about his experience installing wall and floor tile with thinset, which contains the same type of cement as ready-mix concrete. Based on the evidence presented at trial, the court said, the jury determined that the plaintiffs knew or should have known of the dangers of wet concrete and that no additional warning was required.

Citation: Davis v. Simon Contractors, Inc., 2024 WL 4195566 (8th Cir. Sept. 16, 2024).