Should a Product Manufacturer be Held Liable for Failing to Recall a Product Learned to be Defective? In this era of consumerism and government regulation, we are constantly learning of errors in product manufacture which either require or compel recall. Litigants, who have been the victim of product defect, are now training their sights on the proposition that a manufacturer has a legal/factual duty to recall and correct a product defect if that defect was recognized and correctible before the accident event. There is, however, little defining law on this topic. Nevertheless, common sense and morality should direct our legal analysis. The following review demonstrates the rationale for allowing juries to consider whether a product manufacturer has an obligation and whether it has satisfied its obligation to recall and correct a product defect. A recall is a term of law which refers to the act of acquiring back a product for repair or replacement. Often, these recalls are associated with retrofitting the product with a modified feature that eliminates the danger. The theory of a post sale duty to recall or remedy is generally brought in both strict liability and negligence for failing to provide an adequate warning and then conduct an appropriate recall and retrofit. This claim can pertain to the recovery of both compensatory and punitive damages. The Arizona Supreme Court has recognized that a manufacturer can be held liable in negligence and strictly liability for failing--under the appropriate facts--to recall and remedy a dangerous product. The duty to warn has been extended by Courts to necessitate recalls and retrofitting of safety features when a manufacturer becomes aware of an avoidable risk with its product. In Walton v. Avco Corporation, the Pennsylvania Supreme Court affirmed the recovery against a helicopter manufacturer for failing to remedy a post-sale defect. The Supreme Court made the following pertinent findings:
The principles of liability embraced in Readenour, supra. should extend recovery against the manufacturers of mass produced products when the danger of injury is considered substantial and there is a relatively effective means available to recover the product and correct the danger. This proposition has been applied in actions against the manufacturers of automobiles, televisions and helicopters for failing to recall, or warn, or retrofit their products to eliminate a known defect. The logic for holding a company liable for not recalling and correcting a product that is mass produced was well summarized by the Court in Rinker: "In this case, the jury could undoubtedly have found that the breaking of a cam and the jamming of the accelerator causing the vehicle to travel at a high rate of speed without an effective means of control was a threat to the safety. . . The jury had the right to weigh Ford's inactivity against the hazard presented and could conclude that Ford consciously or knowingly elected to disregard what it well knew to be a genuine potential for danger." Notable legal scholars and the Restatement of Torts acknowledge that circumstances will permit an injured party to recover either compensatory or punitive damages because of a manufacturer's refusal to correct a known defect. In their work on Punitive Damages, Professors Ghiardi and Kircher address this same issue: "The existence of this defective product on the market indicates that its producer-distributor did not detect the defect before marketing and has not remedied the defect after marketing. An exemplary award means that the defendant has breached its applicable standard of care in the pre-marketing testing of its product or in the post-marketing remedying of the product." The defendant manufacturer often argues that this proposition runs counter to the notion that a manufacturer is not liable for failing to install in its older products "newly developed safeguards". That argument is wrong. First, more often then not the product "fix" does not relate to a newly developed safeguard, and second, the duty springs from knowledge of the defect rather than from the development of a new safeguard. The most definitive analysis of this issue has been that made by the New York Court of Appeals in Cover v. Cohen: "Although a product be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer of vendor may impose upon one or both a duty to warn. [citations omitted]. . " What notice to a manufacturer or vendor of problems revealed by use of the product will trigger his post delivery duty to warn appears to be a function of the degree of danger which the problem involves and the number of instances reported [citations omitted] . . . . " The nature of the warning to be given and to whom it should be given likewise turn upon a number of factors, including the harm that may result from use of the product without notice, the reliability and any possible adverse interest of the person, if other than the user, to whom notice is given, the burden on the manufacturer or vendor involved in locating the persons to whom notice is required to be given, the attention which it can be expected a notice in the form given will receive from the recipient, the kind of product involved and the number of manufactured or sold, and the steps taken, other than the giving of notice, to correct the problem [citations omitted] . . . . " Courts which have recognized a post sale duty to recall or remedy a product have done so faced with a product which can endanger the public. Other courts have imposed a duty to remedy a latent defect which comes to the manufacturers attention when that defect makes the product inherently dangerous. The failure to recall a discovered defect may even warrant punitive damages. Consumers depend on the manufacturers of mass produced products to carefully develop and market safe products. Failure to comport with our expectations can lead to devastation and personal tragedy. Often, a product's dangers does not become apparent until after it is released for use by the public. Certainly, a manufacturer who learns of post sale dangers has a moral obligation to rectify the problem. Why shouldn't that moral duty create a legal one? If law is but an extension of our societal morality, it is simple common sense to establish a legal duty in this field of safety. |