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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 child's play
1. Something very easy to do.

2. A trivial matter.

child's play

Informal something that is easy to do

Noun 1.
? 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 Safety standards are standards designed to ensure the safety of products, activities or processes, etc. They may be advisory or compulsory and are normally laid down by an advisory or regulatory body that may be either voluntary or statutory. . (1)

This selective classification is a common defense that reveals manufacturers' flagrant fla·grant  
1. Conspicuously bad, offensive, or reprehensible: a flagrant miscarriage of justice; flagrant cases of wrongdoing at the highest levels of government. See Usage Note at blatant.

 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 in·jure  
tr.v. in·jured, in·jur·ing, in·jures
1. To cause physical harm to; hurt.

2. To cause damage to; impair.

 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 ar·gu·a·ble  
1. Open to argument: an arguable question, still unresolved.

2. That can be argued plausibly; defensible in argument: three arguable points of law.

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 Ask a Lawyer

Country: United States of America
State: Michigan

Probably contract law; I live in Michigan; I ordered a used transition from a company in TX. This part is used; I know it's a crap shoot as to how good it is.
 action--usually for breach of the seller's implied warranty A promise, arising by operation of law, that something that is sold will be merchantable and fit for the purpose for which it is sold.

Every time goods are bought and sold, a sales contract is created: the buyer agrees to pay, and the seller agrees to accept, a certain price
 of merchantability mer·chant·a·ble  
Suitable for buying and selling; marketable.

 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 An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called 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 im·pul·sive  
1. Inclined to act on impulse rather than thought.

2. Motivated by or resulting from impulse: such impulsive acts as hugging strangers; impulsive generosity.
, 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 tubular /tu·bu·lar/ (too´bu-lar)
1. shaped like a tube.

2. of or pertaining to a tubule.


1. pertaining to renal tubules.

2. pertaining to fallopian tube.
 railing divider divider

See European currency quotation.
 near a bubble gum machine. The Maine Supreme Judicial Court The Maine Supreme Judicial Court is the highest court in Maine's judicial system. Known as the Law Court when sitting as an appellate court, it is composed of seven justices, who are appointed by the Governor and confirmed by the Maine Senate.  found, "The known characteristics of children, including their childish child·ish  
1. Of, relating to, or suitable for a child or childhood: a high, childish voice; childish nightmares.

 propensities to intermeddle in·ter·med·dle  
intr.v. in·ter·med·dled, in·ter·med·dling, in·ter·med·dles
To interfere in the affairs of others, often officiously; meddle.
, 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 The following is a list of legal concepts and principles, most of which apply under common law jurisdictions.
  • Attractive nuisance
  • Calculus of negligence
  • Caveat venditor
  • Caveat emptor
  • Continuing tort
  • Contra proferentem
  • Duty of care
  • Eggshell skull
 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 vacuum cleaner, mechanical device using a draft of air to remove dust, loose dirt, or other particulate matter from dry surfaces. It is especially useful on highly textured surfaces, such as carpets and upholstery, that are difficult to clean by wiping or brushing. . 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 ob·li·gate  
tr.v. ob·li·gat·ed, ob·li·gat·ing, ob·li·gates
1. To bind, compel, or constrain by a social, legal, or moral tie. See Synonyms at force.

2. To cause to be grateful or indebted; oblige.
 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 Exteremely Dangerous is a 1999 four part series for ITV starring Sean Bean as an ex-MI5 undercover agent convicted of the brutal murder of his wife and child who goes on the run to try and clear his name. He sets out to follow up a strange clue sent to him in prison. ," yet marketed as "safe." The liquid drain cleaner Drain cleaner is a chemical used to dissolve clogs to unblock pipes, such as the drainpipes of sinks, bathtubs, toilets, and showers. It is generally a corrosive chemical such as a concentrated acid or caustic, or is an enzymatic substance.  contained lye (sodium hydroxide sodium hydroxide, chemical compound, NaOH, a white crystalline substance that readily absorbs carbon dioxide and moisture from the air. It is very soluble in water, alcohol, and glycerin. It is a caustic and a strong base (see acids and bases). ) so caustic caustic, any strongly corrosive chemical substance, especially one that attacks organic matter. A caustic alkali is a metal hydroxide, especially that of an alkali metal; caustic soda is sodium hydroxide, and caustic potash is potassium hydroxide.  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 according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 the Consumer Product Safety Commission (CPSC CPSC Consumer Product Safety Commission (US)
CPSC Computer Science (course)
CPSC Canadian Plastics Sector Council (Ottawa, ON, Canada)
CPSC Chemical Processing Safety Committee
), 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 The New Hampshire Supreme Court is the supreme court of the U. S. state of New Hampshire and sole appellate court of the state. The Supreme Court is seated in the state capital, Concord. , 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 Wilkinson Sword is the name of a company that makes knives and razors, and which previously manufactured swords. Wilkinson Sword was founded in 1772 in London.

The company's past product lines have included guns, bayonets, and other objects such as typewriters, garden
, Inc., a wrongful death The taking of the life of an individual resulting from the willful or negligent act of another person or persons.

If a person is killed because of the wrongful conduct of a person or persons, the decedent's heirs and other beneficiaries may file a wrongful death action
 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 A hazard analysis is a process used to characterize the elements of risk. The results of a hazard analysis is the identification of unacceptable risks and the selection of means of controlling or eliminating them.  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 The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please [ improve this article] or discuss the issue on the talk page.
 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 de·flect  
intr. & tr.v. de·flect·ed, de·flect·ing, de·flects
To turn aside or cause to turn aside; bend or deviate.

[Latin d
 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 Attributed vicariously.

In the legal sense, the term imputed is used to describe an action, fact, or quality, the knowledge of which is charged to an individual based upon the actions of another for whom the individual is responsible rather than on the individual's
 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 com·bus·ti·ble
Capable of igniting and burning.

A substance that ignites and burns readily.
 fabrics, and lighters--often contain latent defects latent defect n. a hidden flaw, weakness or imperfection in an article which a seller knows about, but the buyer cannot discover by reasonable inspection. It includes a hidden defect in the title to land, such as an incorrect property description. , 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.


(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 subsection

any of the smaller parts into which a section may be divided

Noun 1. subsection - a section of a section; a part of a part; i.e.
] 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 PRODS PCS Reservation Obligations Database System . 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 Atria
The heart has four chambers. The right and left atria are at the top of the heart and receive returning blood from the veins. The right and left ventricles are at the bottom of the heart and act as the body's main pumps.
 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 INJ Injury
INJ Injunction
INJ International Nonwovens Journal (Technical Association of the Pulp and Paper Industry) 
. 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
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2003, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Swartz, James A.
Date:Nov 1, 2003
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