Efficient Accident Prevention as a Continuing Obligation: The Duty to Recall Defective Products
In the "Cloud Cuckooland of modern tort theory,"' where substanceless, hazy doctrines often operate unrestrained by rationality, still another basis of liability has appeared: a manufacturer's failure to recall a defective product. But this time the innovation is economically sound, promoting efficiency and intelligent decisionmaking-some of the time. The challenge lies both in determining the effects and utility of the duty to recall and in discovering limitations that will ensure that the duty remains grounded in rationality and reality. Although economists and legal scholars have exhaustively analyzed the effect of various liability regimes on the safety of product design, few, if any, have evaluated the incentives in those regimes for manufacturers to prevent injury to consumers who already possess hazardous products. This note analyzes the effect of the duty to recall on incentives for manufacturers to enhance product safety both before and after sale. Part I introduces the concept of product recall and explains how courts find a breach of the duty to recall under the rubric of negligence. Part II lays the foundation for analyzing the effects of the various liability regimes. Part III examines the duty to recall and current product liability regimes, measuring the effects of the legal structure on a manufacturer's design, risk discovery, and recall decisions. Part IV alters certain simplifying assumptions made in Parts II and III and suggests some new areas for further analysis. This note concludes that the duty to recall2 is useful only in those