California Civil Jury Instructions (CACI)

1223. Negligence—Recall/Retrofit

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she/it] failed to [recall/retrofit] the [product]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [product];

2. That [name of 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 [name of defendant] became aware of this defect after the [product] was sold;

4. That [name of 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 [name of plaintiff] was harmed; and

7. That [name of defendant]’s failure to [recall/retrofit] the [product] was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised October 2004

Directions for Use

If the issue concerns a negligently conducted recall, modify this instruction accordingly.

Sources and Authority

  • “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 [34 Cal.Rptr.2d 732], internal citation omitted.)
  • In Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485 [200 Cal.Rptr. 387], 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 p. 494, original italics.)
  • In Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633 [105 Cal.Rptr. 890] (disapproved on other grounds in Regents of University of California v. Hartford Accident & Indemnity Co. (1978) 21 Cal.3d 624, 641–642 [147 Cal.Rptr. 486, 581 P.2d 197]), the court concluded that a jury could reasonably have found negligence based upon the manufacturer’s failure to retrofit equipment determined to be unsafe after it was sold, even though the manufacturer told the equipment’s owners of the safety problems and offered to correct those problems for $500. (Id. at p. 649.)
  • If a customer fails to comply with a recall notice, this will not automatically absolve the manufacturer from liability: “A manufacturer cannot delegate responsibility for the safety of its product to dealers, much less purchasers.” (Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1562–1563 [71 Cal.Rptr.2d 190], internal citations omitted.)