## Facts

- In October 1994, Michael Ostendorf, a Delta Airlines employee, operated a 1980 Clark forklift at the Greater Cincinnati–Northern Kentucky International Airport in Boone County, Kentucky.
- A baggage tug driven by another Delta employee collided with the forklift, causing the forklift to tip and pin Ostendorf’s right foot, resulting in severe injury.
- The forklift (Clark model C-300Y40) was originally sold to Western Airlines by an authorized Clark dealer in California; Delta later acquired the forklift when it purchased Western’s assets.
- At manufacture, the forklift conformed to then-applicable OSHA and ANSI standards, which did not require operator restraints.
- By 1983, Clark developed a safety seat with an operator restraint and initiated a voluntary retrofit program offering the restraint system for certain models, including C-300 and C-500 forklifts.
- The Ostendorfs sued the manufacturer and related defendants alleging strict liability, negligent design, breach of a duty to retrofit, negligent performance of the voluntary retrofit campaign, and breach of warranty, seeking compensatory and punitive damages.

## Issues

1. Whether Kentucky common law imposes a duty on manufacturers or sellers to retrofit products with new safety features when the product was not defective when manufactured and sold.
2. Whether a manufacturer conducting a voluntary retrofit campaign may be liable in negligence for the campaign’s execution under Restatement (Second) of Torts § 324A.

## Decision

- The Supreme Court of Kentucky affirmed the Court of Appeals’ decision in full.
- Kentucky law does not recognize a general common-law duty to retrofit products that were not defective when sold.
- On this record, the voluntary retrofit program did not create liability for negligent undertaking because the evidence did not satisfy Restatement (Second) of Torts § 324A (including increased risk of harm or reliance).
- The strict liability and negligent design claims (and related compensatory and punitive damages theories) were permitted to proceed beyond summary judgment.

## Legal Principles

- Kentucky does not impose a common-law post-sale duty to retrofit a product that was nondefective at the time of manufacture and sale.
- Traditional product-liability doctrines focus on defects existing at the time the product enters the stream of commerce; a retrofit duty would impose retroactive obligations better suited to legislative or administrative action.
- A voluntary safety or retrofit campaign does not, by itself, create tort liability; a plaintiff must prove the elements of negligent undertaking under Restatement (Second) of Torts § 324A.
- Under § 324A, liability generally requires proof that the undertaking increased the risk of harm, that the defendant undertook to perform another’s duty, or that the plaintiff or another relied on the undertaking.

## Conclusion

The court refused to create a general duty to retrofit nondefective products and held that a voluntary retrofit effort supports negligence liability only if the plaintiff can meet Restatement § 324A requirements; the design-defect-based claims remained for further proceedings.


Ostendorf v. Clark Equip. Co., 122 S.W.3d 530 (Ky. 2003)