Understanding the heeding presumption's roots is essential to arguing successfully against its recognition, because courts still rely on the traditional reasons on which the presumption was initiated.
Jacobs, decided by the Texas Supreme Court, is a landmark case that first considered a heeding presumption.
Numerous jurisdictions have cited Technical Chemical since it first recognized a heeding presumption.
Courts typically chose one of two, sometimes both, bases as authority for adopting the heeding presumption: the Restatement and/or public policy.
Numerous states find a basis for the heeding presumption in the Restatement.
Some states that have adopted the Comment j basis for the heeding presumption include Alabama, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Missouri, North Dakota, and Ohio.
Most of these cases use the Restatement comment as a basis for the heeding presumption with little or no analysis.
Many courts have adopted the heeding presumption based on public policy rationales.
Relieves plaintiffs from providing speculative evidence that they would have read and heeding a warning; (20)
One well-known New Jersey case that based its adoption of the heeding presumption on public policy grounds is Coffman v.
Soft Sheen Products, (24) the District of Columbia Court of Appeals also justified the heeding presumption on a public policy rationale, holding that requiring plaintiffs to prove that had an adequate warning been given, they would have read and heeded it, "would impose an impossible burden on the plaintiff, and would often prevent his recovery because of pure speculation on the part of the jury.
A number of recent cases have rejected the heeding presumption expressly.
One particularly in-depth and often cited opinion is that of the Montana Supreme Court rejecting the heeding presumption in Riley v.
Other courts have rejected the heeding presumption with a more straight-forward explanation, simply declaring that it is unfounded in the law.
Finally, one theme on which cases reject the heeding presumption is that it is incorrectly based on Comment j.