Hidden hazards of defective ranges.

Improperly anchored cooking ranges can cause burns and crushing injuries when tipped. It takes only the weight of a medium-sized dog to set in motion the events that can end in tragedy.

In 1976, the Consumer Product Safety Commission reported that there were over 65,000 injuries each year relating to ovens, ranges, and stoves, having an annual estimated cost of $28 million.(1) In 1994, the agency estimated that there were over 157,600 injuries from general household appliances, which include ovens, ranges, and stoves, with an annual cost exceeding $545 million.(2) These injury statistics are appalling when considered in light of the industry's knowledge of the hazards associated with household appliances and of the manufacturers' ability to design safer products and warn consumers about remaining hazards.

Unfortunately, safety consciousness in appliance design, installation, and maintenance is a relatively recent development. Underwriters Laboratories, Inc. (UL) did not adopt a more comprehensive stability test for ranges until 1991, yet these appliances have a normal use-life of at least 15 to 20 years. Hundreds of thousands of houses, apartments, and institutions are still equipped with poorly designed and unsafe ranges.

Twenty-six years ago, the Gas Appliance Manufacturers Association estimated that there were 81.6 million residential gas and electric ranges in use in the United States.(3) The number in use today--about equally divided between both types--is substantially greater.(4)

A particular hazard that many consumers do not know about--although the industry has been aware of it for decades--is range tipping. Consumers' lack of recognition of the danger recently prompted an article by physicians who treated eight children admitted to a single hospital's burn unit over a two-year period. The children had suffered liquid burns from forward-tipping ranges.(5)

Freestanding or slide-in ranges are self-contained stovetop-and-oven combinations that sit on the floor up against a wall. They are designed to fit next to or between counter tops, but are not permanently affixed to them.

These ranges are inherently unstable when their oven doors are open. They can easily tip forward when slight or moving weight is applied to the front, or leading, edge of the open doors. The open door acts as a lever, causing the range to tip forward on its feet, exposing users to scalding bums from spilled hot food and liquids or crushing injuries and asphyxia from the tipped appliances.

The two age groups most at risk for these injuries are young children and the elderly. Because these oven doors open to a horizontal plane less than three feet above the floor, they can be opened by children and are low enough for even small children to climb on. Preoccupied or unsteady adults can easily trip over the low-lying doors and then use the doors for support getting up from the floor.

A range's size and apparent sturdiness when snugly bordered by counters and cabinets disguises the hazard of an oven door's leverage effect. Forward tipping can be initiated by a weight of 30 pounds or less on the leading edge of an open door. Once tipping is initiated, the top-heavy range can tip so rapidly that a child or adult is unable to react fast enough to avoid scalding spills or crushing injuries.

Over time, normal wear and tear may cause door deformation or supporting hardware to loosen, allowing the door to hang at a downward angle. In this case, even less weight is needed to start the tip.

As early as 1985, an ad hoc committee of representatives from the UL and the Association of Home Appliance Manufacturers (AHAM), an association of the industry's major manufacturers, was formed to develop range stability test recommendations. The committee reviewed case histories of tip-over injuries, finding that a large number involved children climbing onto open doors. Another large group of incidents involved older citizens using the door for support to raise themselves after falling near the range.(6)

The final consensus of the AHAM committee, adopted in May 1986, was to recommend that safety certification agencies and voluntary standards organizations adopt an "abnormal performance test" for range stability. At the time, the recommended stability test contained in the American National Standards Institute (ANSI) and UL standards involved placing a static load of 75 pounds on the geometric center of an open door without the range tipping.(7)

The current test consists of the gradual application of static weight--starting at 50 pounds and increasing to 250 pounds--on the geometric center of a fully open door. To pass, a range must remain steady enough to keep a half-full pan of liquid on the range top from tipping off.

Underwriters Laboratories published the proposed standard in 1989 but did not actually adopt it as part of its certification standards until 1991.(8) To comply with it, manufacturers developed antitipping brackets to secure ranges to the floor or wall. These brackets are composed of either two interconnecting pieces--one attached to the wall or floor and the other attached to the range--or a single hold-down bracket affixed to the floor into which one of the rear leveling feet of a range slides. These devices must be installed when the range is installed. They are designed so that they may be unhooked or disconnected in order to move a range for cleaning or servicing.

The limitations of these brackets are many. Installers, consumers, and landlords often fail to install the brackets or fail to securely anchor wall brackets into a solid base like a wood stud. Even if a range has been properly anchored, if it is later moved, it is difficult to reconnect the interlocking bracket pieces or to ensure that the leveling foot is solidly connected to a floor bracket.

Voluntary industry standards also require a warning label affixed to the range alerting users of the tipping danger. The model adopted by the American National Standards Institute states: "All ranges can tip; injury to persons could result; install antitip devices packed with this range; see installation instruction."

By every reasonable definition of a product warning, this minimum label is inadequate. It fails to warn users how easy it is for ranges to tip or tell them that the only protection against crush and burn injuries is to properly install and use an antitip device.(9)

Defendants and liability theories

Obvious potential defendants include the product manufacturer, the retailer, and the installer. Identifying the retailer is frequently easier than identifying the manufacturer because appliances are often sold under retail brand names like Kenmore--sold by Sears, Roebuck & Co.--rather than under the name of the manufacturer. Nevertheless, there is a way to discover a manufacturer's identity.

Most ranges are certified by Underwriters Laboratories and have a "UL Listed" label affixed to them, often hidden on the back. The identification number on the label is assigned to the entity that has submitted the product to UL for testing and other product services to verify compliance with the UL standard. Although specific product testing, manufacturing facility inspections, and other services that are the subject of a listing agreement between UL and the manufacturer are considered proprietary and will not be disclosed, UL will identify the company having the number on the UL label.(10)

Possible claims against manufacturers, retailers, and installers include negligence and strict tort liability. These defendants may also be liable for failing to engage in adequate product-warning, recall, or retrofit campaigns.

There is evidence that before 1991 manufacturers and major retailers were well aware of the tip-over hazard even when antitip brackets were supplied. For example, in 1986, Sears and one of its Kenmoreline manufacturers--Athens, a division of White Consolidated Industries, Inc.--worked at developing a simple hold-down bracket. They did this out of recognition that Sears's contract sales drivers, who were responsible for installing customers' ranges, did not carry the drills and tools needed to install antitip brackets. Sears service personnel then had to be sent to do installation at a cost to the company of $55 per visit.

At retail, Sears chose to make installation of the brackets optional at additional cost to the consumer. When Sears did not install the appliance, salespeople were simply instructed to "make the contractor (customer) aware of this feature ... (so that) the contractor (customer) is given the option of utilizing it or not"(11) No further product warning or retrofit campaign was undertaken.

Four years later, AHAM launched a public awareness campaign called Protect Against Range Tipping (PART), urging consumers to contact range manufacturers for retrofit antitipping kits.(12) However, many manufacturers and retailers never developed or had available retrofit kits for their products. The limited AHAM activities were directed to general press releases concerning the hazard and development of a one-page brochure for consumers entitled "Do Your PART." Manufacturers or retailers who relied on this public awareness campaign to provide adequate consumer warnings did not exercise reasonable care.

Underwriters Laboratories is a potential defendant too. Representatives of UL participated in the 1985 AHAM ad hoc committee formed to address the danger of range tip-over.(13) Given UEs late adoption of the committee's recommended stability test and its awareness of the hazard, liability as a consumer product safety certifier or endorser may exist.(14)

Landlords and management companies for leased premises may be liable for failure to ensure proper installation or retrofitting of ranges. Claims against these defendants also include failure to provide reasonably safe premises and conduct safety inspections. Landlords have been held to have a nondelegable duty to repair all defects in the dwelling of which they knew or should have known. This can expose them to liability for negligent performance of their duty by contractors and others.(15)

A real estate manager's model of reasonable care is contained in a 1994 issue of a newsletter published by the Institute of Real Estate Management. It urges managers of residential property to survey the ranges in every unit and install antitipping devices. It also encourages property managers to educate residents about range-tipping dangers, obtain the "Do Your PART" consumer safety brochure to distribute to residents, and develop a form to warn residents about the tip hazard and provide it to new tenants when they move in.(16)

Defenses

Tort "reform" legislation and a retreat from the doctrine of strict tort liability have imposed on injured consumers the need to prove negligent conduct on the part of product manufacturers and sellers. These changes in the law have also revived certain defenses--for example, open and obvious danger, assumption of the risk, product alteration and misuse, and contributory fault of nonparties--that are commonly used to defeat consumers' claims.

The open and obvious danger defense and the assumption of the risk defense are similar in their reliance on a retrospective common sense bias that the injured consumer should have known better. Defeating these defenses requires proof that the hazard associated with ranges and the means to eliminate it should be within the expertise of the manufacturer, retailer, installer, and landlord.

The history of injury statistics known to the members of the AHAM as well as the AHAM ad hoc committee activities are the best evidence that the hidden danger of range tipping is neither open nor obvious. Similarly, the recent medical journal article identifying eight cases of burn injuries from range tip incidents demonstrates that this hazard is no better understood or knowingly assumed by consumers today than it was 25 years ago.

However, the competent engineer with experience in safety engineering as an expert witness is necessary in overcoming the common sense bias of judges and juries. The safety engineer can explain the sophistication of hazard and risk recognition(17) and perform the dynamic analysis and calculation of the minimal force necessary to tip a range based on principles of physics. The inherent lack of stability in freestanding ranges is not obvious to the eye of the consumer, nor would a consumer be reasonably expected to undertake the calculations to understand the actual risk.

Additionally, the expert familiar with child behavior and development assists the jury in understanding the well-known propensity of children to play on and around household furniture and appliances of all kinds and the foreseeability of this injury event to the manufacturer and others. The Consumer Product Safety Commission has gathered substantial injury statistics on children injured not only by tipping ranges, but also by falling furniture and appliances that children climb on.(18)

The product alteration and misuse defense most often arises when antitipping brackets and warnings have been provided, but not properly used or followed. Generally, reasonably foreseeable misuse or alteration is not a defense. The failure of proper installation or the difficulty of accurately reconnecting brackets has been known by the industry.

When a hazard cannot be eliminated in design, and exposure to the hazard cannot be eliminated through guarding, then warnings and instructions are necessary. The safety engineering expert or human factors engineer can expose the inadequacy of the removable sticker warnings and user manual warnings mandated by prevailing standards.

Inclusion of all culpable parties in the chain of manufacture, sale, installation, and maintenance is obviously the best defense to a claim of fault of nonparties. Landlords and others who have purchased and installed ranges since 1991 cannot be excused from failing to inspect and retrofit older ranges still in use. However, when older model ranges are involved, the expert witness familiar with product recall planning and protocols can expose the inadequacy of the manufacturer's and retailer's retrofit campaign and minimize the owner's culpability.

The nonparty claim most often implicated in cases involving a child is the lack of parental supervision. The fact of the injury itself is compelling evidence of parents' lack of risk recognition, since it is absurd to suggest that any parent would expose a child to the burn or crush injuries caused by a tipped range.

With respect to any claim of contributory negligence, again, the evidence of the user's lack of risk recognition is key. Generally, children of tender years cannot be guilty of contributory negligence.(19)

Another issue for plaintiffs is the requirement that they prove the existence of a technologically and economically feasible safer alternative at the time of design and sale.(20) This development mandates that learned treatises, standards and codes, injury statistics and case histories, competitor's products, patents, engineering texts and articles, industry literature, and professional conference proceedings be admissible for all purposes and not for limited purposes such as impeachment.

These sources show proof of the state of the art at the time a product was designed and sold, as well as the existence of the technological and scientific knowledge from which a safer alternative could have been developed. The most direct evidence of available alternatives is contained in the AHAM press release advising consumers that they can retrofit ranges themselves by bolting them to the floor with lag bolts or chaining them to a wall stud.

Discovery

Deposition discovery is time consuming and expensive. Also, many jurisdictions limit the number of interrogatories that may be posed and depositions that may be taken. Requests for production of documents are a valuable tool for obtaining evidence showing the standard of care, foreseeability of injury, and knowledge and foreseeability of misuse.

The following is a sample of documents that should be sought from the defendants in the initial discovery requests filed and served with the complaint.

From the retailer and manufacturer:

* a copy of the operator's manual and installation instructions, each warning label or instructional decal that was attached to the range at the time of initial sale or that was supposed to be attached by the installer, and an exemplar antitip retrofit kit for the model at issue

* the complete safety review for the model range

* all correspondence, interoffice memoranda, reports, summaries, or other written or recorded items pertaining to range tipping, stability, or instability and sent to or received from the Consumer Product Safety Commission, the Association of Home Appliance Manufacturers, Underwriters Laboratories, the National Propane Gas Association, and any other industry, consumer, or federal organization or agency

* the minutes and records of each design review meeting or other internal document that demonstrates consideration of range tipping or stability; stability testing; antitip devices; and the need for, composition of, and adequacy of warning or instructional labels relating to tip-over dangers

* the failure mode and effect analysis, fault tree analysis, safety systems analysis, or other written methodology used to evaluate the tip-over hazard in freestanding ranges

* all claims or notices of complaints and inquiries relating to alleged injuries or defects associated with range tipping

* all documents, checklists, and instructional or informational materials relating to range tipping or stability that were supplied by the defendant to retailers, sales personnel, dealers, wholesalers, vendors, contractors, purchasers, installers, or users

* each test protocol, test result, analysis, summary, videotape, photograph, film, or other written or recorded item pertaining to range stability tests and tipping tests

* the stability design standard, performance standard, and constructional standard for the model range at issue

* the defendant's corporate product warning/recall/retrofit campaign protocol and each document showing any campaign undertaken relating to range tip-over

* the warranty registration and records for the model at issue

* all communications between the defendant and UL relating to UL 858 and stability standards for freestanding and drop-in ranges

* all invoices, contracts, installation orders, repair orders, or other documents pertaining to the sale, delivery, installation, and repair of the subject range

* all contracts and standards, specifications, or requirements between the retailer and the manufacturer regarding design, manufacture, sale, labeling, and distribution of the model range and all vendors' agreements detailing respective responsibilities and assumptions of defense

* the defendant's corporate product warning/labeling standard and all documentation relating to the design, development, review, approval, and implementation of product labels, disclaimers, and instructions concerning range tipping or stability

* the listing agreement and all modifications and addenda between the manufacturer and UL regarding the model range

* a copy of each patent or patent application for antitipping devices

Document discovery from the landlord or premises owner or manager should include requests for the following:

* a copy of the lease agreement and tenants' rules and regulations (Note that exculpatory clauses or other disclaimers of liability for unsafe conditions within the tenant's premises may be unenforceable.)(21)

* all guidelines, checklists, standards, inspection records, and documents used by the defendant for inspecting premises for unsafe conditions; identifying and eliminating unsafe conditions associated with kitchen appliances, including retrofitting ranges with antitipping devices; and alerting tenants to the use or operation of antitip devices

* all move-in and move-out inspection reports for the unit

* all safety notices, industry publications, or other documents received or disseminated by the defendant relating to range-tipping hazards; antitipping devices; warnings to lessees of the potential for tipping; and inspection, repair, or retrofit of ranges

* the contract with each entity or person having responsibility for sale, installation, repair, maintenance, inspection, or installation of the defendant's ranges

* all purchase, delivery, installation, and maintenance records, as well as owner's manuals for the subject range and all ranges in the defendant's units since 1986

* all complaints, inquiries, notices of injury, and notices of near injury relating to tipping or instability of any ranges in the defendant's units

* all local, state, or other rules and regulations with which the defendant must comply relating to design, maintenance, repair, inspection, and operation of its premises for the safety of tenants

Many of these documents will form the basis for depositions of corporate representatives to establish that they were aware of the tip-over hazard long before the client's injury and that consumers are not generally aware of the risk of range tipping. Also, requests for admission establishing the authenticity and availability of injury statistics and industry publications, AHAM recommendations, journals of professional or technical societies, patents, competitors' literature, and the defendant's own documents become direct proof of the defendant's actual or constructive knowledge of the hazard, the postulates of due care, foreseeability, and causation.

Alternatively, the absence of safety engineering methodologies to identify and correct this hazard in older models, or to implement product retrofit and warning campaigns, or to inspect and correct this unsafe condition in older premises will go far in establishing culpable conduct on the part of all entities in the design, distribution, installation, and maintenance chain of use.

Litigation tips

Assume a product manufacturer has produced and sold a product it later determines presents an unreasonable risk of harm to users. Reasonable prudence requires that the manufacturer undertake a product warning, retrofit, or recall campaign to eliminate or appreciably minimize the injury potential.

For example, in many jurisdictions a manufacturer has a recognized post-sale duty to warn of defects of which it becomes aware.(22) Additionally, when one undertakes to act, such as undertaking a product warning campaign, one must act with due care.(23) When old range models cause severe burn or crush injuries, counsel should not overlook the viability of this claim.

As shown above, there is ample evidence of the industry's knowledge of this hazard and the undertakings to warn and retrofit. The reasonableness of this undertaking should be measured against protocols and recommendations for effective product recall campaigns that have existed for decades.(24)

The National Safety Council has published one such comprehensive protocol,(25) recommending that when a company finds that a product hazard exists, some of the steps to be taken include:

* determine the number and identity of the products

* determine from sales and distribution records the customers who purchased the products

* for products under the Consumer Product Safety Act, notify the commission of the hazard and coordinate all activities with the commission

* notify dealers and distributors of the hazard and detail their procedures to follow in implementing the warning/retrofit campaign, as well as reimbursement steps enabling dealers to recover their cost for time, labor, etc.

* formulate a product hazard letter to be sent to all customers that clearly spells out the product hazard and its severity and the steps the consumer must take to remedy it; certified mail or telegram should be used for serious risks of injury

* formulate press releases for newspaper, radio, and television, and place the advertisements in these media

* develop and retain records evaluating the effectiveness of the campaign and follow up where customer response has been absent or inadequate

* when customer records are incomplete or nonexistent, use media advertisements with action steps to be taken to comply with the retrofit program.

Another excellent source for understanding the reporting requirements of the Consumer Product Safety Act relating to unsafe consumer products is the CPSC Recall Handbook, which was published in 1988. Product warning campaigns, like product warnings, must be calculated to reach the ultimate users and exhort them to act in the interest of their own safety. An inadequate warning is the equivalent of no warning at all.

Ultimate goals

Through product and premises liability lawsuits, society achieves product reliability and premises safety. The basic principles of safety engineering are: identify the hazards associated with design; eliminate the hazards through redesign; guard to eliminate exposure to hazards that cannot be eliminated, warn as to any remaining risk of injury, and instruct on the precautionary measures to be taken to avoid injury.

These are the principles that should guide the trial lawyer in proving liability against defective range manufacturers and retailers, as well as negligent landlords, maintenance companies, and property managers when these products cause devastating injury to users.

Notes

(1.) CONSUMER PRODUCT SAFETY COMM'N, PRODUCT PROFILE FOR RANGES, OVENS, AND STOVES (Oct. 1976).

(2.) CONSUMER PRODUCT SAFETY COMM'N, ANNUAL REPORT (1994).

(3.) GAS APPLIANCE MANUFACTURERS ASS'N, STATISTICAL HIGHLIGHTS (1974).

(4.) Based on a personal communication with a General Electric representative, GE estimates that there are 60 million electric freestanding ranges in U.S. households today.

(5.) Joseph Still et al., Burns of Children Caused by Electric Stoves, 19 BURN CARE & REHABILITATION 364 (1998).

(6.) Minutes of the Ad Hoc Committee to Develop Range Stability Recommendations of the Association of Home Appliance Manufacturers Range Engineering Committee (Mar. 20,1986).

(7.) See, e.g., STANDARD FOR HOUSEHOLD ELECTRIC RANGES ANSI:UL 858 (American Nat'l Standards Inst./Underwriters Labs., Inc. 1986). Interestingly, almost 20 years earlier, in 1969, GE imposed an internal design standard that a range should withstand a static load of 50 lbs. placed on the leading edge of the open oven door.

(8.) STANDARD FOR HOUSEHOLD ELECTRIC RANGES UL 858 (Underwriters Labs., Inc. 1991); see also STANDARD FOR HOUSEHOLD COOKING GAS APPLIANCES ANSI Z21.1a-1991 (American Nat'l Standards Inst. 1991).

(9.) See, e.g., FMC CORP., PRODUCT SAFETY SIGN AND LABEL SYSTEM (4th ed. 1985); WESTINGHOUSE ELECTRIC CORP., PRODUCT SAFETY LABEL HANDBOOK (1981); see also Harry Philo, New Dimensions in the Tortious Failure to Warn, TRIAL, Nov. 1981, at 40.

(10.) Submit the "UL Listed" number to Underwriters Laboratories, Inc., 333 Pfingsten Rd., Northbrook, IL 60062-2096.

(11.) Interoffice memorandum from J.D. Vickers to J.J. Tacker, Athens Stove Works, Inc. (May 20, 1986); Internal Correspondence from Dick Galante, Marketing Manager, Appliances & Building Products, Sears, Roebuck & Co. to Contract Sales Office, Unit Manager & ABP Sales Manager, Sears, Roebuck & Co. (June 3, 1986).

(12.) Association of Home Appliance Mfrs., Newsline Press Release, Consumers Urged to Do Their "PART" to Protect Against Range Tipping (June 13, 1990); see also National Propane Gas Ass'n, Protection Against Range Tipping NPGA 411-92 (Dec. 1992).

(13.) See Still et al., supra note 5.

(14.) See, e.g., Peacock's, Inc. v. Shreveport Alarm Co., 510 So. 2d 387 (La. Ct. App. 1987); Hempstead v. General Fire Extinguisher Corp., 269 F. Supp. 109 (D. Del. 1967); see also Hanberry v. Hearst Corp., 81 Cal. Rptr. 519 (Ct. App. 1969).

(15.) See, e.g., Misiulis v. Milbrand Maintenance Corp., 218 N.W.2d 68 (Mich. Ct. App. 1974); Nedrow v. Pruitt, 521 S.E.2d 755 (S.C. Ct. App. 1999). A landlord may also be liable under a theory of negligence or strict liability as the supplier of a defective product. See, e.g., Hockenhull v. Cutler Hubble, Inc., 197 N.W.2d 344 (Mich. Ct. App. 1972); Fakhoury v. Magner, 101 Cal. Rptr. 473 (Ct. App. 1972).

(16.) Tipping Stoves: A Risk You Need to Know About, CPM ASPECTS, Mar./Apr. 1994, at 12. Copies are available from the Institute of Real Estate Management, 430 N. Michigan Ave., Chicago, IL 60611.

(17.) See Harry M. Philo & Nicholas J. Rine, The Danger Never Was Obvious, 1 J. PROD. LIAB. 12 (1977).

(18.) See, e.g., CONSUMER PROD. SAFETY COMM'N, FURNITURE CAN TIP OVER ON CHILDREN (1990).

(19.) See, e.g., Queen Ins. Co. v. Hammond, 132 N.W.2d 792 (Mich. 1965). Also, the contributory negligence of parents cannot be imputed to a minor. See, e.g., McLeod v. Newcomer, 785 P.2d 575 (Ariz. Ct. App. 1989). But see Lester v. Magic Chef, Inc., 230 641 P.2d 353 (Kan. 1982).

(20.) RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY [sections] 2 (b)(1994).

(21.) See, e.g., Taylor v. Leed & Co., 412 So. 2d 763 (Ala. 1982).

(22.) See, e.g., Walton v. Avco Corp., 610 A.2d 454 (Pa. 1992); Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451 (2d Cir.) (applying New York law), cert. denied, 396 U.S. 959 (1969); 1 LOUIS R. FRUMER & MELVIN L. FRIEDMAN, PRODUCTS LIABILITY [sections] 12.08[1] (1998).

(23.) See Glanzer v. Shepard, 135 N.E. 275 (N.Y. 1922).

(24.) See, e.g., HOWARD ABBOTT, MANAGING PRODUCT RECALL: A COMPREHENSIVE GUIDE TO ESTABLISHING A PRODUCT RECALL PLAN (1991); AMERICAN SOC'Y FOR QUALITY CONTROL, PRODUCT RECALL PLANNING GUIDE (1981).

(25.) NATIONAL SAFETY COUNCIL, ACCIDENT PREVENTION MANUAL FOR INDUSTRIAL OPERATIONS 655-66 (1981).

Mary Stuart White is a partner with White & White Law Office in Brighton, Michigan.