According to the government investigation
[ Download | Online ] thus far, GM began installing defective ignition switches in some of its cars as early as 2001. While the company may have known about the problem at that time, they apparently didn’t believe it warranted serious investigation. By, 2005 however, data about the defect was beginning to pile up as more customers began reporting that keys could be inadvertently switched off by a knock of the knee while driving. GM again looked into the problem but this time concluded that a repair was either too expensive or not technically feasible. Finally in 2014, more than a decade after GM arguably knew there was a serious flaw with the switch, the company began to recall some of the switches. Meanwhile, at least 13 people died as a result of the bad switch and many more injuries and minor accidents can likely also be attributed to the defect.
To date, the GM recall has been expanded to include more than 2.6 million affected vehicles. For its delay in initiating the recall, GM has been fined $35 million; the highest such fine ever levied against a company by the NHTSA. While consumers may be spared further risk from this particular defect after the part is changed at GM’s expense, what of those already hurt or killed by the flaw? Is this recall effort the end of the story for GM?
Product Liability Lawsuits
Fortunately for drivers, the answer is a firm NO. The liability a manufacturer faces for defective products is not terminated by the act of issuing a recall. However, neither does the existence of a recall effort necessarily create liability with regard to the defect in question. In order to prevail against a manufacturer for injury caused by a defective product, a person must prove all the elements of a product liability claim. These include that the product was in fact defective and that this defect led to the specific injury the plaintiff suffered.
While it might seem counterintuitive to some people, the existence of a recall usually cannot be used as direct proof of a defect in a product. There are a couple of sound policy reasons for this limitation. The first is that recalls are sometimes issued out of an abundance of caution in situations where the existence of a defect is perhaps suspected but not know with certainty. Furthermore, not every recall proves that a product was defective when manufactured or sold. Sometimes recalls are triggered by new technology or by new knowledge about innovative ways in which a product is being used. Second, broadly speaking, we want companies to recall products when they discover dangerous defects. If they didn’t, those defects would continue to put users of the product at risk. However, if every recall effort triggered legal liability for the defect under consideration, far fewer companies would voluntarily issue recalls for fear of igniting a storm of product lawsuits.
Whether or not the existence of a recall can be used to prove liability on the part of the manufacturer, notice of that recall might become a critical issue in some cases. Where a company gave specific notice to the injured party prior to the accident in question, the plaintiff’s failure to heed that warning may prevent them from proving that the defect is what ultimately caused the accident. In other words, if drivers who have been warned of the ignition defect continue to operate their cars without bothering to obtain the necessary repairs, resulting accidents might not be fairly laid at the feet of GM.
Sometimes, the act of issuing a recall does have direct implications for liability in defective product lawsuits. The GM case makes a good example. While the facts are still being sorted out, it looks like GM may have waited several years between the time when the company learned of the defect in the ignition switches and the time it decided to take corrective action. This, in fact, is the basis for the NHTSA fine recently levied against GM. While courts have yet to rule on the issue, it’s possible that this delay may expose GM to additional liability not solely based on the ignition switch defects. Rather, it might be that GM’s delay can be used as evidence that the company acted with gross negligence, or even malice if new facts come to light, potentially putting the company at risk for punitive damages.
The Court of Public Opinion
Regardless of how the legal wrangling turns out for GM and injured consumers, the court of public opinion might return the harshest verdict against the company. Given the impression that the company put profits over lives (whether or not this is the truth), consumers may begin to turn elsewhere for their automotive needs. If enough buyers lose faith in the company’s ability to manufacture a safe car, GM might be in serious trouble. Only time will tell how this will ultimately play out.