Know Your Obligations for Post-Sale Product Safety

By HunterMaclean Attorneys

Published in Business in Savannah

Savannah and the Coastal Empire are home to a number of major manufacturers who produce, market and ship high-quality products to customers around the world.

State laws typically provide remedies to consumers of products – from construction backhoes to everyday household goods – who find that the product they are using is defective. After all, consumers are entitled to enjoy products that are safe when used correctly and have not been designed, manufactured or marketed with defects. That does not mean, however, consumers are entitled to products that are completely free from danger.

Sometimes a manufacturer’s obligations to consumers continue after the sale when, for example, a product defect is first discovered years later, or product advancements are developed that make the product safer and the manufacturer has not yet warned of the danger protected by the new advancement. The general rule in Georgia is that if a manufacturer has actual or constructive knowledge of a danger, it has an obligation to warn consumers accordingly. However, this rule is not absolute and there are case-specific limits to a manufacturer’s duty to warn about post-sale discovered dangers and safety advancements.

Take, for example, a 1970’s-era automobile built without airbags. Should a manufacturer be responsible for injuries occurring that may have been prevented had the car been built with an air bag? Certainly later model cars have air bags, so why shouldn’t the manufacturer be required to recall all cars previously sold and retrofit the new technology?

First, such a burden would stifle manufacturing and bring some industries to a halt. Second, who will pay for such improvements and what would happen if the value of the original product is below the cost of installing or retrofitting the new technology?

Although manufacturers may have a duty to warn in these instances, absent special circumstances imposed under the law, manufacturers do not have a legal duty to recall and/or retrofit older equipment when new industry-developed safety advancements are implemented. When a manufacturer discovers a defect in one of its products, it often initiates a recall campaign whereby consumers are notified to return the defective product to the point of sale — usually the store or dealership where the product was purchased — for a replacement of or repair to the product. However, recalls are neither routine nor required when technology advances and safety improvements are made to a product.

For many manufacturers of routine disposable household products like toasters, light bulbs and television sets, it becomes difficult, if not impossible, to track down every owner of every product sold to notify them of product changes and new warnings. Other manufacturers have a duty to keep track of their products and have mechanisms in place to conduct adequate safety recalls and retrofit campaigns.

So, is a manufacturer potentially responsible for damages caused because it does not have the latest or subsequently developed safety advancements and warnings on its products? Possibly. Although manufacturers are not required by law to notify customers of safety advancements developed post-sale, they do have a duty to warn them of hazards either known at the time of, or learned after the sale.

Manufacturing companies should recognize their potential post-sale legal liability for products sold, realizing that their exposure may differ based on the nature of the dangers and the nature of any safety improvements developed for later product models. Legal duties pertaining to post-sale obligations tend to be broad and less restrictive, but these duties are still subject to interpretation and enforcement in a court of law. Be sure to consult with a qualified legal expert in order to determine the limits of your company’s liability.