What is the Effect of a Product Recall on a Defective Product Claim?

A product recall is a request from a product manufacturer for consumers to take certain action because of the discovery of safety issues or defects. In some cases, the request involves taking the product in for repairs or updates; in others, the product could be completely unusable due to extreme safety risks. The government may also issue a recall if the manufacturer refuses, but these situations are rare. Companies are typically trying to get ahead of a reputation disaster when they announce recalls, so the government may not need to get involved.

In many recall scenarios, there may not be any reports of injury or accident related to a defect. Manufacturers would rather act in advance of a complaint and absorb the costs of repair or replacement, as compared to dealing with the outrageous expenses they face for litigation related to defective products. Still, many more recalls are linked to injuries and even fatalities.

In most cases, a recall alone does not establish liability. Claimants must still prove the elements of their claim under one of the following theories of liability:

• Strict Liability: This type of case requires the claimant to show that 1.) the manufacturer had a duty to provide consumers with a safe product, 2.) breach of this duty, and 3.) injures directly resulting from the breach.
• Breach of Warranty: Under this theory, a claimant must prove that the manufacturer 1.) issued a warranty along with a product and 2.) the item did not comply with the warranty obligations. It is also necessary to show that 3.) the failure to comply with the warranty caused injuries.
• Negligence: Though it is often grounds for such personal injury claims as car accidents and slip and fall incidents, negligence is not used as often as a theory of liability for defective products. Proving negligence requires you to pinpoint the act that led a dangerous product to be released into the stream of commerce, and to identify the nature of the breach of duty. This can be challenging, which is why many products liability cases proceed only as strict liability claims. Strict liability does not place at issue the level of care employed by the manufacturer.