Opinion
Civil No. A1-02-43, Docket Number: 144
February 2, 2004
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT TO DISMISS CLAIM ASSERTING A DUTY TO RECALL OR RETROFIT
Summary: The Court finds the duty to warn is distinguishable from the duty to recall or retrofit. Based on such finding, the Court concluded there is no basis in law for the plaintiff's claim regarding the defendants' duty to recall or retrofit.
Before the Court is the defendants' Motion for Partial Summary Judgment to Dismiss Claim Asserting a Duty to Recall or Retrofit (doc. #66). For the reasons outlined, the motion is GRANTED.
I. BACKGROUND
This action arises out of injuries sustained by the plaintiff, Paul Eberts, on April 30, 1996, when he was allegedly thrown from a three-wheeled all-terrain vehicle (ATV) manufactured by the defendants. Eberts filed suit against the defendants on April 3, 2002, asserting, among other things, that the defendants had a post-sale duty to recall or retrofit their ATVs. The defendants filed a Motion for Partial Summary Judgment to Dismiss Claim Asserting a Duty to Recall or Retrofit on October 15, 2003. The basis for the defendants' motion was that the imposition of such a duty would be unreasonable and would only serve to deter development of new designs.
II. STANDARD OF REVIEW
It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir. 1999). A fact is "material" if it might affect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed.R.Civ.P. 56(e). A mere trace of evidence supporting the non-movant's position is insufficient. Instead, the facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III. LEGAL DISCUSSION
The defendants acknowledge that North Dakota courts have yet to address the issue of the post-sale duty to recall or retrofit. However, they point out that a majority of states that have addressed the issue in the context of either negligence or strict liability claims have imposed no such duty upon manufacturers. See McDaniels v. Bieffe USA, Inc., 35 F. Supp.2d 735, 743 (D. Minn. 1999). Next, they assert that North Dakota courts are likely to adopt a similar stance on this issue given the finding in other jurisdictions that the imposition of a post-sale duty to recall or retrofit only serves to stifle innovation. See Modelksi v. Navistar Intl. Transp. Corp., 707 N.E.2d 239, 247 (Ill. 1999).
In response, Eberts asserts that manufacturers such as the defendants should not be allowed to simply ignore post-sale knowledge about the dangers associated with the use of their products. He states that manufacturers have a post-sale duty to warn about the dangers associated with the use of their products. He then asserts that, by extension, a manufacturer that creates a risk has a duty to eliminate it. Specifically, he contends that persons are required by North Dakota negligence law to act reasonably under the circumstances and that a recall or retrofit may constitute a reasonable post-sale response. He also contends that the existence of such a duty is a question of fact for the jury to decide.
Before addressing the merits of the defendants' motion, the Court must decide whether the duty to recall or retrofit is a factual question for the jury. Contrary to the Eberts' contention, the existence of a duty to recall or retrofit in North Dakota is a question of law as opposed to a question of fact. Accordingly, the issue is properly before the Court.
In Crowston v. Goodyear Tire Rubber Co., 521 N.W.2d 401, 409 (N.D. 1994), the North Dakota Supreme Court held that, under negligent failure to warn principles, defendants have a post-sale duty to warn about dangers associated with the use of their products. It added that manufacturers can satisfy this duty by taking reasonable steps to warn foreseeable users about the dangers associated with their product. Id. Notably, it did not impose a duty to recall or retrofit.
In the context of general negligence actions, North Dakota courts have recognized that actors have a duty to exercise reasonable care under the circumstances. See Kimball v. Landeis, 652 N.W.2d 330, 334 (N.D. 2002). The exercise of reasonable care cannot be extrapolated to encompass a duty to recall or retrofit, however. See Burke v. Deere Co., 6 F.3d 497, 510 (8th Cir. 1993) ("[A] duty to recall is not generally incorporated in a duty to warn.").
As the defendants have pointed out, the overwhelming majority of other jurisdictions have refused to impose a duty on manufacturers to recall and/or retrofit a defective product. See McDaniel v. Bieffe USA, Inc., 35 F. Supp.2d 735, 743 (concluding that no such duty exists under Minnesota law); Burke v. Deere Co., 6 F.3d 497, 508 n. 16 (8th Cir. 1993) (restating that no such duty exists under Iowa law); Wallace v. Dorsey Trailers Southeast, Inc., 849 F.2d 341, 344 (8th Cir. 1988) (affirming district court's conclusion that Missouri does not recognize a duty to retrofit); see also Tabieros v. Clark Equip. Co., 944 P.2d 1279, 1298-1300 (Haw. 1997) (citing cases and stating that "virtually every court that has confronted the issue head-on" has rejected this duty);Gregory v. Cincinnati Inc., 538 N.W.2d 325, 333 (Mich. 1995) (holding there is no continuing duty to repair or recall). Although no North Dakota court has addressed this issue directly, it is unlikely that the state would impose a duty to recall and/or retrofit a defective product given the stance of these other jurisdictions.
Although not binding, the Restatement (Third) of Torts: Products Liability § 11, cmt. a (1998) is instructive. It provides in relevant part that:
Duties to recall products impose significant burdens on manufacturers. Many product lines are periodically redesigned so that they become safer over time. If every improvement in product safety were to trigger a common-law duty to recall, manufacturers would face incalculable costs every time they sought to make their product lines better and safer. Moreover, even when a product is defective . . . an involuntary duty to recall should be imposed on the seller only by statute or regulation. Issues relating to product recalls are best evaluated by governmental agencies capable of gathering adequate data regarding the ramifications of such undertakings. The duty to recall or repair should be distinguished from a post-sale duty to warn about product hazards discovered after sale.
As the duty to warn is distinguishable from a duty to recall or retrofit, and North Dakota has not expressly recognized a duty to recall or retrofit, the Court finds that there is no basis in law for Eberts' claim regarding the defendants' duty to recall or retrofit.
IV. CONCLUSION
The defendants' Motion for Partial Summary Judgment to Dismiss Claim Asserting a Duty to Recall or Retrofit (doc. #66) is GRANTED.
IT IS SO ORDERED.