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56 U. Det. J. Urb. L. 1083 (1978-1979)
Automobile Recall Campaigns: Proposals for Legislative and Judicial Responses

handle is hein.journals/udetmr56 and id is 1097 raw text is: Automobile Recall Campaigns: Proposals for Legislative and Judicial Responses STEPHEN J. WERBER* In 1978 the author received a letter from Nissan Motor Corpora- tion indicating a potential defect in a r.cently purchased 1977 Dat- sun F-10 Wagon.' This letter, couplec with my experience as a liti- gation attorney in the automobile product liability area, led to anal- ysis of the effects such a letter could have if introduced into evidence during a product liability trial. A review of the available govern- ment regulations and judicial decisions led me to believe that the area was ripe for a new legislative or administrative initiative to balance the equities between consumers' needs and the potential liability of manufacturers or sellers of products subject to recall campaigns, specifically motor vehicles. The letter was sent by first class mail pursuant to the recall notification requirements of the federal government.2 Recall cam- paigns of motor vehicles can be voluntarily initiated by the manu- * B.A. Adelphi University (1961); J.D. Cornell University (1964); LL.M. New York University (1970); Member of New York Bar; Professor of Law, Cleveland State Univer- sity, Cleveland-Marshall College of Law. Professor Werber has been actively engaged in the litigation of product liability cases and the teaching of product liability since 1967. 1. Dear Datsun Owner: During its field quality testing program, Nissan Motor Corporation in the U.S.A. (NMC) has determined that a welding fitting in your Emission Control System may be leaking. This leak could cause the engine of your Datsun to emit pollutants in excess of Federal and State emission standards. Nissan Motor Corporation in U.S.A. has made arrangements for the Datsun dealer of your choice, to correct the defect described below, at no charge to you. In order to meet the Federal Emission Standards, your vehicle has an Exhaust Gas Recirculation Valve. The exhaust gas pressure is monitored by the Back Pressure Transducer (BPT) valve. In a small number of vehicles a fitting on the BPT valve has been found loose, causing the valve to fail in its operation. Should the fitting be loose, your vehicle emission will exceed EPA standards, and may cause your vehicle to fail an emission inspection test, if such tests are required under State and local law. The dealer will affix a spring clamp on your BPT valve. After October 25, 1977, all Datsun dealers will have the spring clamps readily avail- able. (Remainder omitted). Examples of recall notification letters in regard to safety related defects are contained in several opinions including: Farner v. Paccar Inc., 562 F.2d 518 (8th Cir. 1977); Harley- Davidson Motor Co. v. Carpenter, 350 So.2d 360 (Fla. 1977); Manieri v. Volkswagenwerk AG, 151 N.J. Super. 422, 376 A.2d 1317 (1977); Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 (2d Dept. 1976); Nevels v. Ford Motor Co., 439 F.2d 251 (5th Cir. 1971). 2. 49 C.F.R. §577.7 provides that notifications shall be sent by first class mail.

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