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Danger at play: inquisitive children invariably handle the products they encounter in their homes. Manufacturers face lawsuits when they ignore the risks their products pose to kids.

What is child's play? Does it involve simply trucks, dolls, paper, and paint--or anything a child can foreseeably "play" with? The answer often depends on whom you ask. Product manufacturers try to narrowly classify toys as the only items that will foreseeably be used by children. They will argue, for example, that if a product is not sold as a toy, then it is not a children's product subject to certain regulatory safety standards. (1)

This selective classification is a common defense that reveals manufacturers' flagrant disregard lot child safety, since such thinking excludes the numerous products that are not intended for children's use but nevertheless regularly and predictably fall into their hands. Household products such as appliances and chemicals are of particular concern, since they are intended for use in environments where children live and play.

When a child is injured by a household product that may be defective, the plaintiff attorney must factor children's curiosity in to the liability equation. The issue becomes whether the child was a foreseeable end-user, not whether the child was an in tended user. An end-user is either an intended or a foreseeable and unintended user of a product.

An attorney trying to determine whether a household product is defective and decide whether to accept a case should adopt a "broad spectrum" approach. A broken part is not the only kind of defect. The term encompasses improper design, improper choice of materials or components, failure to use safety devices, inadequate warnings, inadequate instructions, improper assembly and manufacture, and misleading advertising and marketing. A defect affecting safety may occur during any phase of production, including design, selection of component parts and materials, manufacture, assembly, inspection, packaging, instructive and warning labeling, testing, certification, and promotion. If child safety is not properly addressed in each stage, then the product targeted for home use is arguably defective.

The legal theories that are usually applied in products cases also provide plaintiff counsel a basic framework for locating and proving a defect. Negligence focuses on the defendant's conduct. Its lack of due care creates the hazard. Investigating, evaluating, and proving a negligence claim requires considering the defect from the seller's perspective and showing that a step in the manufacturing, design, testing, packaging, or marketing process was performed improperly.

A breach of warranty action--usually for breach of the seller's implied warranty of merchantability or of fitness for a particular purpose--focuses on the product itself. (2) Goods must he fit for the manner in which they are ordinarily used, which implies that there is a standard of average quality. Whether a product is of "average" quality can be more specifically determined by whether the product can be safely used for normal purposes. But what defines "normal" in a home environment that includes children? The plaintiff attorney must control this definition from the outset of litigation.

'Predictably unpredictable'

It is well known that children interact with the world around them in a curious, creative, and imaginative way. In fact, one manufacturer of children's products states in its product safety handbook, that "nearly all children have these qualities in common: curiosity, impulsiveness, and impatience.... [I]t's an ironical fact that accidents, not diseases, pose the greatest threat to your child's health.... Children cannot, of course, be expected to exercise mature judgments as to what is safe and what is dangerous." (3)

Courts have acknowledged for decades children's propensity for being "predictably unpredictable." For example, in a 1971 case, Orr v. First National Stores, Inc., an eight-year old child who accompanied her mother into a supermarket was injured when she fell from a tubular railing divider near a bubble gum machine. The Maine Supreme Judicial Court found, "The known characteristics of children, including their childish propensities to intermeddle, must be taken into consideration in determining whether ordinary care for the safety of a child has been exercised under particular circumstances." (4) The court determined that the evidence raised issues of fact as to the defendant's liability, but it remanded the case for a new trial based upon an erroneous jury instruction.

Legal doctrines such as assumption of risk have little or no application to a child plaintiff, since a child's sense of danger is not as sophisticated as an adult's. Manufacturers are well aware that households may include children of all ages. They must anticipate children's exploration beyond intended uses and incorporate safety into their product designs.

Courts have ruled that it is foreseeable that children may treat household products as playthings. In Keller v. Welles Department Store of Racine, for example, the court confirmed that the sellers of a gasoline can owed a duty to the minor plaintiff who was injured while playing with the container. The court stated:
 It is not unforeseeable that a child might
 attempt to taste the liquid in the can. Nor is
 it unforeseeable that in the course of playing
 "mow the lawn" or "gas station," a child
 might pour the gasoline from the can.
 Because children are fascinated with fire,
 the danger arising from such an action is
 certainly foreseeable)


In LaRue v. National Union Electric Co., an 11-year-old boy had part of his penis amputated while playing on a canistertype vacuum cleaner. Evidence at trial showed that the foreign version of the product incorporated a shield that would have prevented injuries and that the manufacturer was aware of both design alternatives and the existence of potential hazards in the fan and motor area. The First Circuit stated that manufacturers are obligated to design household products to reasonably protect children when their contact with the product is foreseeable. (6)

Children as end-users

Children should not be precluded from recovery for injuries caused by unreasonably dangerous products simply because the product was intended for adult use. The plaintiff attorney must define the issue as one of foreseeability; that is, "Was it foreseeable that the child could use the product?" It is also critical that the attorney make clear that in these contexts particularly, "use" of a product includes "foreseeable misuse" by children.

In the following examples, it was foreseeable that household products would be attractive to children and fall into their hands.

Two toddlers, 15 months and two years old, sat on top of a gas stove and were severely burned after they turned on the burners. The plaintiffs alleged that the stove's design was unsafe because its control knobs lacked child-resistant features and could be turned easily. The stove manufacturer settled close to trial. (7)

In another case, a one-year-old girl was the innocent victim of a product described by the manufacturer as "extremely dangerous," yet marketed as "safe." The liquid drain cleaner contained lye (sodium hydroxide) so caustic that it would dissolve skin almost immediately on contact. The minor plaintiff obtained a large judgment. (8)

The foreseeable curiosity of children and the principle of end-use have also arisen in litigation involving disposable cigarette lighters. According to the Consumer Product Safety Commission (CPSC), these lighters have been responsible for an estimated 160 deaths per year from fires started by children under five years old. Although disposable lighters are intended for adult use, they have a "unique appeal to young children--they are often brightly colored, sometimes resemble a toy or cartoon character, and produce a bright flame." (9)

In Price v. Bic Corp., a 17-month-old sustained severe burns when the infant's three-year-old brother found and activated a disposable cigarette lighter. The guardian of the injured child's estate brought a design-defect action against the manufacturer for failure to incorporate child-resistant features. The New Hampshire Supreme Court, in response to a certified question of law, held that the design-defect claim could be maintained
 [even] if the product was intended to be
 used only by adults; the risk that children
 might misuse the product was open and
 obvious to the product's manufacturer and
 its intended users.... Manufacturer liability
 may still attach even if the danger is obvious
 to a reasonable consumer or if the user
 employs the product in all unintended but
 foreseeable manner.... [A] manufacturer's
 duty to warn is not limited to intended users
 of its product, but also extends to all reasonably
 foreseeable uses to which the product
 may be put. (10)


This point was underscored in another case, involving a four-year-old who started a fire while playing with a disposable cigarette lighter. Three children died in the fire. Perkins v. Wilkinson Sword, Inc., a wrongful death and products liability action brought against the manufacturer, claimed that the lighter was defectively designed because it did not incorporate child-resistant features. In answer to a certified question, the Ohio Supreme Court found that the risk-benefit test could be used to prove a design defect in a properly functioning disposable lighter:
 [A] manufacturer may be liable for failing
 to use a feasible alternative design that
 would have prevented harm caused by an
 unintended but reasonably foreseeable use
 of its product. Lighters are commonly used
 and kept around the home, and it is reasonably
 foreseeable that children would
 have access to them and attempt to use
 them. (11)


Recognizing that disposable cigarette lighters are attractive to young children and that children have easy access to them in many households, the CPSC voted unanimously to set a mandatory safety standard requiring that all butanefuel disposable, refillable, and novelty lighters be child-resistant. (12) The move to protect children was not forestalled because the product at issue was not intended for use by children. Instead, the commission embraced the fact that children are foreseeably curious about the world around them. As a result, according to the CPSC's Hazard Analysis Division, there has been a 58 percent reduction in cigarette lighter fires caused by children under age five, saving the lives of approximately 100 children and preventing injury to as many as 660 children in 1998 alone. (13)

Unfortunately, the government has not always adequately addressed the issue of unintended but foreseeable use by children. In 1984, Congress enacted the Toy Safety Act, which states that if "any toy or other article intended for use by children that is not a banned hazardous substance contains a defect which creates a substantial risk of injury to children," then the CPSC may take action against the item's manufacturer. (14) The act does not address children's end-use of products intended for adults.

Dealing with defenses

The law should provide children the protection they deserve when the government and manufacturers have failed. Defendants will try to shift the focus by using traditional classifications of a product, that is, for use by either an adult or a child, so the plaintiff attorney must keep the focus on the true issue--foreseeable end-use.

This can be accomplished through discovery, both before and during litigation. Find out whether the manufacturer made safety modifications to a newer version of the product; such changes convey the manufacturer's awareness of the product's inherent risks--risks that were known or should have been known at the time of your client's injury. Investigate what representations the salesperson or vendor made to the client about the product. For example, in a case involving an appliance, were optional attachments available that might have prevented the injury? Also, locate all promotional literature, advertisements, instructions, and warnings; these can provide evidence that the manufacturer knew the product would be used in an environment that included children.

The defense may try to shift the focus away from the product defect by claiming that "carelessness" or "misuse" caused the injuries. Counter this by arguing that the product is used by real people in real circumstances--which means it is foreseeable that sometimes it will not be used with the utmost care. Defendants will produce engineers who say the product is safe in laboratory conditions. Respond that companies have a duty to make products safe for use in homes with children.

One case, for example, involved two children who were playing on a comforter when it caught fire. The comforter was filled with polyester, which melted into a spreading ball of fire. The cause of the fire was unclear, but the important question was: How did the comforter perform once it caught fire? Fires can be started in many ways, including by unwitting children. The plaintiff's theory that manufacturers have a duty to make a product that will not exacerbate injuries once a fire starts led to a successful result. (15)

Plaintiff counsel must anticipate and deflect another common defense--inadequate supervision by parents or caregivers. It is well known that children at home will sometimes be out of adult sight, if only briefly. Do not allow the defense to shift focus away from the defective product, especially when adults were unaware of the hazards the item posed. Further, a caregiver's negligence, if any, cannot be imputed to a child.

Attorneys should also be wary of defendants' attempts to make ludicrous analogies, for example, comparing a common hammer to the defective household item at issue. Hazardous items--such as stoves, drain cleaners, combustible fabrics, and lighters--often contain latent defects, and they are generally marketed and sold not as professional-grade tools but as safe, reliable lifestyle enhancements. Keep the case, and ultimately the jury, focused on the particular hazardous attributes of the product.

Manufacturers should not be permitted to shield themselves from liability by claiming that a product is intended solely for adult use when it can foreseeably fall into the hands of children. A manufacturer's first line of defense against claims related to household products should be to design the product for safe foreseeable use, not to narrowly define its uses to avoid responsibility for tragic outcomes.

Notes

(1.) Children's playthings are covered primarily in the Federal Toy Safety Act of 1984 (15 U.S.C. [section] 1274(c)(1) (2002)), Child Safety Protection Act (15 U.S.C. [subsection] 1278, 6001-06 (2002)), and Consumer Product Safety Act (15 U.S.C. [subsection] 2051-85 (2002)), which created the U.S. Consumer Product Safety Commission (CPSC).

(2.) U.C.C. [subsection] 2-314, 2-315 (2002). The plaintiff may also have a claim for breach of express warrants; See U.C.C. [section] 2-313 (2002).

(3.) GERBER PRODS. CO., A HANDBOOK OF CHILD SAFETY 2 (1981 ).

(4.) 280 A.2d 785, 792 (Me. 1971); see also LaRue, ERA. v. Nat'l Union Elec. Corp., 571 F.2d 51, 56 (1st Cir. 1978), quoting Orrv. First Nat'l Stores, Inc., 280 A.2d 785,790,792,794.

(5.) 276 N.W.2d 319,324 (Wis, Ct. App. 1979).

(6.) 571 F.2d 51, 55-6.

(7.) Gauthier v, [Major Stove Manufacturer], No. CA 76-1263K (D. Mass. 1982) (defendant's name withheld due to confidentiality agreement).

(8.) Drayton v. Jiffee Chem. Corp., 395 F. Supp. 1081 (N.D. Ohio 1975), aff'd and modified, 591 F. 2d 352 (6th Cir. 1978).

(9.) 16 C.F.R. [section] 1210.5(a) (2003). CPSC Final Rule on Child-Resistant Lighters, No. 93-980 (June 1993).

(10.) 702 A.2d 330,333 (N.H. 1997).

(11.) 700 N.E.2d 1247 (Ohio 1998); see also Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254 (4th Cir. 1998); Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098 (D. Colo. 2000).

(12.) 16C.F.R. pt. 1210 (2003).

(13.) Linda E. Smith et al., Study of the Effectivenes, of the U.S. & Safety Standant for Child Resistant Cigarette Lighters, 8 INJ. PREVENTION 192, 195 (2002).

(14.) 15 U.S.C. [section] 1274 (2003) (amending the Federal Hazardous Substances Act, 15 U.S.C. [subsection] 1261 78 (2002)).

(15.) Hinckley v. Eastman Kodak Co., No. 69-1338-J (D. Mass. 1973).

JAMES A. SWARTZ practices law with Swartz & Swartz in Boston.
COPYRIGHT 2003 American Association for Justice
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Author:Swartz, James A.
Publication:Trial
Date:Nov 1, 2003
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