Before launching into the title topic of this column, we briefly call the reader’s attention to Adams v. Genie Industries Inc.,1 a May 11 products liability decision by the Court of Appeals, which rejects the notion, advocated by some, that there is a post-sale duty upon manufacturers and sellers to recall or retrofit a product that a claimant alleges to be defective.
The Court tersely addressed the issue: “We have never imposed a post-sale duty to recall or retrofit a product and the facts of this case provide no justification for creating one.” Indeed, the trial court was deemed to have erred in submitting this theory to the jury but, since it had no impact on the outcome of the case, the error was deemed harmless. Thus, when a seller discovers risks after the sale that were not known beforehand, the seller’s duty is to warn, not to recall or retrofit.
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