The recent case of Hutton v. General Motors of Canada Limited discusses the legal duties, including the continuing duty to warn, that remain after a manufacturer's product recall.

The plaintiffs sued GM of Canada for injuries sustained when the airbags in their Chevrolet Cavalier deployed inappropriately. The car had been the subject of a recall notice for service in 1998 for an increased risk of airbag deployment in a low speed crash, or when an object struck the floor pan. Rather than redesigning the airbag system, GM had recalibrated it to reduce the risk of inappropriate deployment. A redesign and replacement would likely have eliminated the risk entirely. GM viewed redesign and replacement as economically unfeasible.

The particular Cavalier in question was bought as a used car in 2000, and had received the recommended recall servicing. In 2003, the plaintiffs were driving on a gravel road at moderate to low speed (less than 30km/18 miles per hour), when they passed through a puddle 3-4 inches deep and the airbags deployed. The passenger suffered a broken arm, cuts, and abrasions.

The trial Judge accepted that the initial recall to recalibrate the airbag system, rather than to replace or redesign it, was appropriate in the circumstances. GM was therefore not negligent in taking the steps it did to alleviate, but not entirely eliminate, the known problems. However, the Court went on to say that where a risk of harm remains after a product recall, it is the duty of a manufacturer to provide an appropriate warning of that residual risk. The Judge accepted that it was not unreasonable for GM to balance a recall against redesign and replacement, but held that it owed a continuing duty to users to fully inform them of that trade-off, and of the remaining risks with the airbag system.

This case demonstrates that even where a manufacturer shows that a product recall was reasonable in all of the circumstances, its duties to consumers do not end there. The manufacturer must warn of any remaining risks.