In an illustration to Comment a, the “Restatement” describes the following situation:

[The manufacturer] develops an improved model that includes a safety device that reduces the risk of harm to users. The washing machines sold previously conformed to the best technology available at time of sale and were not defective when sold. [The manufacturer] is under no common-law obligation to recall previously distributed machines in order to retrofit them with the new safety device.

These statements and this illustration make it clear that there is no post-sale duty to recall where the product was not defective when sold. In contrast, regarding merely warning duties, Section 10 makes it clear that the product does not need to be defective at the time of sale to give rise to a post-sale duty to warn.

So, where does this leave the manufacturer? Probably confused. Since a post-sale improvement is an “alternative design” and an admission that the product can be made safer, the plaintiff might argue that this improvement proves that the product without the improvement was defective when sold and that the improvement could have been developed much earlier. This, in effect, potentially turns the post-sale safety improvement into a situation where the manufacturer is fixing a defective product. Thus the jury could hold the manufacturer liable for selling a defective product, as well as for negligent failure to warn those customers that purchased the product before it was “improved.”

For example, in Tabieros v. Clark Equipment Co., the Hawaii Supreme Court held that “a manufacturer has no duty to ‘retrofit’ its products with ‘after-manufacture’ safety equipment, although it may be found negligent or strictly liable for failing to install such equipment — or not otherwise making its product safer — existing at the time of manufacture.”

To add to a manufacturer’s uncertainty, a California case suggests that even if the product is not defective at the time of sale, negligence for failure to conduct an adequate retrofit campaign may be found, even when the product is not defective when sold. The California Court of Appeals in Hernandez v. Badger Construction Equipment Co. held the manufacturer negligent for not informing its prior customers that an optional safety device was now mandatory and for not trying to retrofit old products that did not have the safety device. The Hernandez court, relying in part on Balido v. Improved Machinery, Inc., justified imposition of liability based on the rationale that “Badger did not do ‘everything reasonably within its power to prevent injury’ to plaintiffs.”

Thus, manufacturers should take no solace in the helpful language in the “Restatement” on safety improvements. There are many opportunities for plaintiffs to argue that the manufacturer should have done more. Furthermore, manufacturers should be very mindful of these arguments when making significant improvements in safety. Assuming that the products in the field can be retrofitted with this new technology, the manufacturer should seriously consider offering such technology to prior customers. It will enhance safety for those customers who take the new technology and make any litigation more defensible where the customer refused the new technology.

It is not necessary for manufacturers to offer safety improvements to customers at no charge. The customer would have paid for the safety improvement if it had been on the product originally. Consequently, they should pay for it now. Furthermore, a plaintiff might actually argue that offering a safety improvement for free constitutes evidence that the manufacturer is really just trying to fix a defective product.

Products evolve over time and the law supports making safety improvements. Consequently, no manufacturer should avoid making better and safer products. When doing so, however, the manufacturer should consult with experienced product safety counsel to decide whether it should offer the improvement to prior customers and how to make the offer so as not to be considered negligent.

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