Just as the country was hit by the worst winter storm of the season, Toro recalled its Power Max 826 OHAE 252cc Two-Stage Electric Start Gas Snow Blower. The recall covers some 6,700 machines from late 2020 and early 2021 with model number 37802. The recalled machines were a new model for this winter and were sold at Home Depot, Ace Hardware and through Toro authorized dealers. The machines retailed for around $1,200; the recall was due to a possible amputation hazard.

The model, the top of the line for Toro’s compact snowblowers, seemingly offers everything you could want from a compact snowblower designed to cut into 20” of snow at a time and throw it up to 45’, including heated handles, triggerless steering, a chute that adjusts at the turn of a lever, and LED headlights. Unfortunately, there have also been five reported incidents of the auger not disengaging when the control lever is released. Consumers have been told to cease using the machines and return them to a Toro authorized dealer for repair.

The auger is probably the most dangerous part of a snowblower. It is something akin to a lawnmower blade and is the piece of the snow thrower that revolves and cuts through the snow and ice before it is shot through the chute and out of the driveway. The danger posed by a revolving blade that doesn’t cease revolving when you disengage it is obvious. Between 2001 and 2016, there were approximately 92,800 snowblower injuries in the U.S. The most common injury involved fingers, followed by hands. Most of the accidents involved lacerations, fractures, and, in the worst cases, amputations.

In addition to returning their machines to Toro for repair, owners of these snowblowers who have had an incident with the auger have been advised to report the malfunction to the Consumer Product Safety Commission.

The CPSC has also posted the recall notice on its website, although Toro’s recall is voluntary, rather than ordered by one of the government agencies empowered to do so (the Consumer Product Safety Commission, the Food and Drug Administration, the Food Safety and Inspection Services, the National Highway Traffic Safety Administration, the Coast Guard, and the Environmental Protection Agency.)

Questions of liability arise with any recall, including the question of whether or not the recall shields the manufacturer from lawsuits. It both does and it doesn’t. One way in which it does is the assumption of the risk defense, according to which, if you have been warned that, for example, an auger keeps rotating even when you think you’ve turned it off, and you continue to use the equipment despite the warning, then, if you sever your hand, the manufacturer could conceivably not be liable for the damages.

That would fall under the rubric of personal physical damages, which obviously need to be litigated one case at a time. The other type of litigation that often arises from product recalls is the kind of class-action suit all manufacturers dread, actions that can be fueled as much by negligent non-reporting of product defects as by the implicit admission of fault in a recall notice. A possible means of avoiding such problems is the careful crafting of a notice to consumers so that it can be construed as a remedial measure rather than an admission of guilt. In many jurisdictions, evidence of subsequent remedial measures by a manufacturer are inadmissible as proof of negligence or that a defect exists.

Toro has taken the more usual and possibly more honest route of simply issuing the recall, perhaps especially because of the gravity of the danger posed by augurs that fail to disengage. There must be 6,700 unhappy purchasers of the model affected by the recall, all of whom no doubt hoped that their shiny new top-of-the-line snowblowers would see them through a tediously lingering winter, but the inconvenience of the recall is far preferable to the hazards posed by that non-disengaging auger.