Safeway Can’t Escape Club Card Recall Warning Class Action Lawsuit

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A class action lawsuit alleging Safeway Inc. should have warned “Club Card” holders about product recalls was retained by a federal judge on Monday.

Lead plaintiffs Dee Hensley-Maclean and Jennifer Rosen argued in their February 2011 Safeway club card class action lawsuit that Safeway violated various California consumer protection statutes and California common law by failing to notify certain customers of recalls on food items they previously purchased. In the complaints, one plaintiff alleges that she purchased peanut butter crackers and Nutter Butter sandwich cookies that were part of a nationwide recall of peanut butter products tainted with salmonella. The other plaintiff alleges she bought recalled eggs. Both women allege that they used their Safeway Club Cards for the purchases.

According to the Safeway website, a Safeway Club Card is a free program where customers “can enjoy exclusive savings all across the store AND anytime you shop online at Safeway.com.” The plaintiffs argue that their use of the Club Cards meant that the store had access to their phone numbers, email and mailing addresses. They argue that Safeway should have contacted them about the recalls, but did not.

In their motion for summary judgement, Safeway argued the class action lawsuit should be dismissed because California law does not impose a post-sale duty to warn on grocers. U.S. District Judge Richard Seeborg disagreed. “Because California negligence law imposes a general duty of care and Safeway advances no basis to carve out an exception, Safeway’s motion must be denied,” the judge ruled.

In his ruling, Judge Seeborg pointed out that California law generally imposes a duty of ordinary care. He refers to state case law, which holds, “The general rule in California is … each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” The judge explains, “In the absence of a statutory provision limiting this rule, exceptions to the general principle imposing liability for negligence are recognized only when clearly supported by public policy.”

In response to Safeway’s argument that the company was not obligated by a duty to warn consumers after purchase, the judge stated, “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. Moreover, numerous California decisions have explicitly or implicitly recognized that a seller’s duty under negligence may extend beyond the point of sale”

Judge Seeborg did agree with Safeway that strict liability did not apply. “Under the state’s common law concept of strict liability, Safeway has no duty to warn of defects that were unknown and unknowable at the time of sale,” stated the judge. “Safeway’s duty to warn under strict liability extends only to those risks of which it had actual or constructive knowledge at the time of sale.”

Plaintiffs and the proposed class are represented by Stephen Gardner and Amanda Howell of the Center for Science in the Public Interest; Daniel T. LeBel of Consumer Law Practice of Daniel T. LeBel; Steven A. Skalet and Craig L. Briskin of Mehri & Skalet PLLC; James C. Sturdevant of the Sturdevant Law Firm; and Whitney Stark of Terrell Marshall Daudt & Willie PLLC.

The Safeway Club Card Class Action Lawsuit is Dee Hensley-Maclean, et al. v. Safeway Inc., Case No. 3:11-cv-01230, in the U.S. District Court for the Northern District of California, San Francisco Division.