Elements to Establish a Claim for Failure to Recall

Plaintiff must prove all of the following:

1. That the defendant manufactured/distributed/sold the product;
2. That the defendant knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner;
3. That the defendant became aware of this defect after the product was sold;
4. That the defendant failed to recall/retrofit or warn of the danger of the product;
5. That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have recalled/retrofitted the product;
6. That the plaintiff was harmed; and
7. That the defendant’s failure to recall/retrofit the product was a substantial factor in causing the plaintiff’s harm.

CACI No. 1223 — Revised October 2004

“Failure to conduct an adequate retrofit campaign may constitute negligence apart from the issue of defective design.” (Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1827. In Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485, the court observed that, where the evidence showed that the manufacturer became aware of dangers after the product had been on the market, the jury “could still have found that Clark’s knowledge of the injuries caused by these features imposed a duty to warn of the danger, and/or a duty to conduct an adequate retrofit campaign.” The failure to meet the standard of reasonable care with regard to either of these duties could have supported a finding of negligence. (Id. at 494.)

The Third Restatement of the Law of Torts (1998), Product Liability § 11, provides:

One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to recall a product after the time of sale or distribution if

1. []...
1. a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or
2. the seller or distributor, in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and
2. the seller or distributor fails to act as a reasonable person in recalling the product.

Duty to Disclose All Facts Related to Recall — Car Dealerships

Gutierrez v. Carmax Auto Superstores Cal. (2018) 19 Cal. App. 5th 1234 “On the question whether [plaintiff] pleaded sufficient facts to establish CarMax had a duty to disclose the safety recall, we conclude her allegations are sufficient.” (Id. at 1239.) Gutierrez contends the duty to disclose existed because CarMax:

1. had actual knowledge of the recall before the sale of the vehicle and
2. made partial representations about the vehicle that were misleading because the existence of the recall, a material fact, had not been disclosed.

(Id.)

“We conclude her allegations are sufficient to establish for pleading purposes the existence of the safety recall was a material fact and, by reasonable inference, the existence of CarMax’s knowledge of the recall before the sale.” (Id.)