Respond to Recalls: Claims and Defenses

Existing Authority

Manufacturers should contend that a consumer's knowing failure to respond to a recall relieves them of liability as a matter of law. This argument, however, is unlikely to succeed. A complete exoneration would require the court to find that the consumer's act was an intervening cause that supersedes the manufacturer's liability for causing the accident. An act must be unforeseeable to be intervening and the consumer's failure to heed a recall alone is unlikely to be found unforeseeable as a matter of law. Comments to the Restatement (Third) of Torts: Products Liability '11 state that foreseeability “may” be a contestable issue:

The fact that one who owns or possesses a product that was defective at time of sale does not respond to a recall notice does not necessarily eliminate the causal connection between the original defect and the plaintiff's harm. It may be foreseeable that product owners will fail to respond to recall notices.

As the Restatement also notes, there is a “paucity” of authority concerning this issue. Almost all of the few relevant cases involve an intermediary that did not respond, rather than the injured party. Those cases, nevertheless, indicate that a manufacturer is unlikely to prove that a consumer's failure to respond to a recall was unforeseeable as a matter of law or fact. Perhaps the current leading case is Springmeyer v. Ford Motor Co., 60 Cal. App. 4th 1541, 71 Cal. Rptr. 2d 190 (1998), which thoroughly considered a manufacturer's intervening cause defense involving an intermediary.