Safeway May Have Duty|to Warn After Recalls

(CN) - Finding that grocers do have a duty to warn consumers about any recall of food they sold, a federal judge refused to clear Safeway in a class action.

Dee Hensley-McLean and Jennifer Rosen are the lead plaintiffs in a class action that alleges Safeway failed to let them know that it sold them "tainted" food subject to federal recalls. They say the store can easily contact members of its Club Card loyalty program since it has their personal information on file.

"They claim that, under various California consumer protection statutes and California common law, Safeway is legally obligated to notify its Club Card members of the Class I recalls," U.S. District Judge Richard Seeborg explained Monday.

The grocer, one of the largest in the United States, moved for summary judgment on the basis that it purportedly has no duty to inform consumers about such recalls.

Its motion came after it became clear that deciding the legal question of Safeway's duty to warn "could simplify, and potentially dispose of, the class certification issues," Seeborg wrote.

The San Francisco court ruled against Safeway on Monday.

"Safeway does not claim that after the Class I recalls are instituted, it lacks adequate knowledge of the dangerous nature of the recalled products to formulate a meaningful warning," he wrote. "Nor has Safeway shown it is unable to provide warnings to ultimate consumers or even that food manufacturers are categorically better positioned to do so."

California also does not have a "no-duty" to inform rule, according to the ruling.

"California negligence law imposes a general duty of ordinary care and Safeway has not shown either a statutory or public policy exception justifying a post-sale, no-duty rule," Seeborg wrote. "Moreover, numerous California decisions have explicitly or implicitly recognized that a seller's duty under negligence may extend beyond the point of sale."

Because the action can proceed under the negligence theory, the judge saw no reason to grant the plaintiffs additional discovery to demonstrate that Safeway "may have had reason to know of the Class I Recalls prior to selling the recalled products."

If Safeway was aware at the time of sale of facts that would render those representations misleading, any representations or omissions by the store may constitute a violation of the Consumer Legal Remedies Act, Seeborg added.

The ruling also advances a claim under California's Unfair Competition Law to the extent it is based upon Safeway's established negligence.

The parties will appear at a case management conference May 15.

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