CACI No. 1223. Negligence - Recall/Retrofit

Judicial Council of California Civil Jury Instructions (2023 edition)

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1223.Negligence - Recall/Retrofit
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun/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
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
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 manufacturers 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.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1643
1 California Products Liability Actions, Ch. 7, Problems of Causation, § 7.06
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.52
(Matthew Bender)

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