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Litigating bunk bed entrapment cases.

On May 27, 1994, Nicholas Mayernik, age two and a half, of Lake Worth, Florida, was hanged while trying to crawl off the top bunk of his babysitter's bed. The 6-inch space between the bed frame and the guardrail was large enough for his body--but not his head--to slide through. He was found with his head trapped, his face pressed into the mattress, and his body dangling helplessly.

The bed eventually was recalled by the manufacturer, El Rancho Furniture Manufacturers, Inc.(1) Within a year of the youngster's death, the U.S. Consumer Product Safety Commission (CPSC) and 11 other furniture manufacturers jointly announced the recall of 320,000 other wooden bunk beds due to entrapment hazards.(2)

Unfortunately, the Florida boy's death was not an isolated incident. From 1990 to 1994, the CPSC documented 45 bunk bed-related deaths. Of these, 29 resulted from entrapment and 16 from other causes. Using statistical estimating techniques, the CPSC came to the conclusion that the death toll during that period reached 90.(3)

The injury data for the same five-year period are astonishing. U.S. hospital emergency rooms treated an estimated 111,000 bunk bed-related injuries. Fortunately, most of these injuries were minor. Only 3 percent required hospital treatment beyond emergency room care. About 60 percent involved children under age six.(4)

These deaths and injuries could have been prevented. Safety authorities and furniture manufacturers have long known that children around age two begin trying to climb out of their beds. Their newly found mobility and lack of judgment make them ideal candidates for entrapment in bunk beds.

Hazards associated with these beds are numerous. A discussion of all of them is beyond the scope of this article, which focuses on entrapment hazards that bunk bed guardrails present. Other hazards include falling out of the bed; collapse of the bed; and entrapment between the mattress and bed frame, under the footboard, and between the frame and the wall beside the bed.

History

The first bunk bed safety guidelines were published January 1, 1979, by the Inter-Industry Bunk Bed Safety Task Group of the American Furniture Manufacturers Association (AFMA). The guidelines recommended that the guardrail cover an area "reaching from not more than 8 cm (3 in.) above the sleeping surface of the mattress upward to not less than 12.5 cm (5 in.) above that surface."(5)

The guidelines also designated the placement of two labels that cautioned consumers against putting children under age six on the top bunk and warned consumers always to use a combination of guardrail and mattress that would allow for the recommended spacing.

The 1979 recommendations proved ineffective. Between 1979 and 1985, bunk bed-related injuries jumped by more than 75 percent. Alarmed by this trend, the CPSC, in conjunction with the furniture safety group, promulgated revised Voluntary Bunk Bed Safety Guidelines in 1986.(6) Of special note was the change in the amount of recommended space under the guardrail.

The new standard, recognizing that manufacturers often sell these beds without mattresses and that the compressibility of mattresses can differ, measured the opening from the lower edge of the guardrail to the hard frame of the bed. That space was set at 3.5 inches or less. For beds sold with a mattress, the space from the guardrail to the mattress surface could be no more than 1 inch.(7)

The 1986 revisions also simplified the labeling requirements, calling for only one label and specifying its placement. The label, which has survived later guideline revisions, reads--

WARNING! To help prevent serious

injuries from entrapment or falls:

When centered, mattress must be no more

than one inch at any point from the

interior bed structure. Use guardrails

on both sides of upper bunk. Use

the ladder for entering and leaving

upper bunk. Prohibit children under six

years on upper bunk. Ensure all

connectors are tight. Prohibit

horseplay on or under bed(s).

Follow and keep written

instructions with this bed. DO NOT

REMOVE THIS LABEL.

In August 1986, the Consumer Federation of America petitioned the CPSC to create a mandatory safety standard, alleging the 1986 voluntary standards did not adequately address bunk bed hazards. Two years passed. With Reagan-era anticonsumerism holding sway in Washington, the commission voted 2-1 to deny the petition in July 1988.

The panel, however, directed its staff to send a "strongly worded letter" to the furniture manufacturers association, requesting that additional staff recommendations be incorporated into the 1986 guidelines.(8)

That letter eventually led to a 1992 voluntary standard, American Society for Testing and Materials (ASTM) F142792, which addressed various bunk bed hazards. The AFMA had promised to establish a program to certify that bunk beds complied with the voluntary standard, but the program never materialized. An independent testing laboratory set up its own certification program, but only 9 of 85 identified bunk bed manufacturers and importers elected to participate.(9) Revised standard ASTM F1427-94, published in August 1994, addressed the structural integrity of metal bunk beds.

Because manufacturers faced no penalties for flouting the voluntary standards, corporations continued to place unsafe beds on the market. Although the CPSC commended the AFMA for its recent leadership in strengthening the standards,(10) the fact remains that children today face avoidable risks in the absence of mandatory standards.

The CPSC and the Justice Department have taken a new tack to improve bunk bed safety by targeting alleged wrongdoing by individual manufacturers. Late last year, the agencies filed a civil lawsuit against children's furniture maker Cosco, Inc., for failing to report consumers' complaints about its products to the commission.

Although the company worked with the CPSC to recall hazardous toddler beds in 1992 and 1993, the agency learned Cosco had also failed to report ongoing complaints about guardrail entrapment hazards on those beds. The beds were taken off the market in 1993. Cosco paid a $725,000 fine.(11)

Many guardrail entrapment cases have gone through or are currently in the court system. The lessons learned by plaintiffs' lawyers are many. Those who agree to take an entrapment case like this should do the following:

* Get possession of the bed. If the local police have it, ask them to release it to you after their investigation has been completed.

* Measure the bed from every angle, photographing and videotaping the process. Measure all parts of the bed--not just the opening that caused the child's injury--because the bed may not conform to the guidelines in other ways.

If you want to dismantle the bed for storage, label each part and videotape the dismantlement. This step could prove crucial if the frame parts of the lower and upper bunks are different sizes, as the differences would affect the spacing between the frame parts and the guardrail.

* Check the label identifying the manufacturer and the date the bed was made. This will determine which set of guidelines applies. Was the manufacturer an AFMA member when the bed was made? If so, the manufacturer can hardly claim ignorance of the guidelines. If not, why didn't the manufacturer join this industry organization, which alerts its members of potential safety hazards?

If the bed has a warning label, pay careful attention to its wording and location. A warning that mirrors the federal guideline wording essentially confirms that the manufacturer had notice of the hazard.

A warning that complies with the guidelines also may be rendered ineffective by its location. For instance, in the Mayernik case, the bed had an appropriate warning but it was located on the inner frame of the bottom bunk, hidden by the mattress.

* Try to locate the retailer--especially if the retailer delivered and set up the bed. The retailer's name may be integral to the case if the manufacturer claims the product was altered after it left the factory. If the manufacturer is from another state, and you think it best to avoid federal court, adding the retailer may defeat diversity.

Attitudes toward trying a case in federal court vary by regions of the country. Florida lawyers, for example, try to avoid it. Federal rules in local districts sometimes levy oppressive motion requirements on pre-trial and trial activities. Also, federal dockets are often crowded with criminal cases that take precedence because of speedy trial guarantees. Getting a civil case to trial in fedal court can be difficult.

* Obtain an expert immediately. The expert can help pinpoint hazardous conditions and save duplication of effort later. Entrapment hazards have been widely studied by the CPSC. There is no shortage of expertise in this area.

Also, consider retaining a human factors expert or safety design engineer to testify on the usefulness of warning labels. Typically, plaintiffs' experts say warnings should be used only if the danger cannot be eliminated or diminished.

* Get a copy of the taped 911 call if the person who found the child called the emergency number. It will convey to a jury--in a way no courtroom witness can--the horror of finding a trapped child.

* Obtain the investigating agency's report if the incident involved death or serious injury. These reports usually contain witness statements, photographs of the bed while it was in the home, and, if applicable, an autopsy report.

Contact the CPSC for information on guardrail entrapment hazards by calling (800) 638-2772 or writing to CPSC, Washington, DC 20207.

Lawyers for manufacturers will find these cases difficult to defend from a liabilty standpoint. The entrapment hazard is well documented within the industry, and the bed either conforms to the guidelines or it does not.

The most likely defense will be consumer misuse. Even if the bed had no warning, the manufacturer may attempt to argue misuse on the basis of common sense. This is a seductive argument that may threaten a plaintiff verdict.

Counsel should anticipate the argument and deal with it delicately in voir dire. Although many people will say a small child should not be placed in the top bunk, most will say on further questioning that they perceive falling, not strangulation, to be the hazard.

Perhaps the most effective argument to deflate the misuse defense is this: The company that made the bed--not the consumer--has unlimited access to data on the strangulation hazard. A simple and obvious remedy exists in these cases. The manufacturer can eliminate the hazard while adding little, if any, cost to the product.

There is no excuse for any manufacturer, either because of lack of notice or because of price considerations, to put bunk beds, or any beds for that matter, on the market with an entrapment hazard built into their design.

Notes

(1) "El Rancho Furniture/Seffi Industries Recalls Wooden Bunk Beds," Press Release No. 95021, U.S. Consumer Prod. Safety Comm'n (Nov. 3, 1994) (2) "CPSC and Manufacturers Announce Recall of Wooden Bunk Beds," Press Release No. 95118, U.S. Consumer Prod. Safety Comm'n (May 9, 1995) (3) Memorandum from Jo-Annette David, U.S. Consumer Prod. Safety Comm'n, to John Preston, "Bunk Bed-Related Death and Injury Incidents Involving Children Under Age 15, January 1, 1990, through December 31, 1994," (Mar. 10, 1995). (4) Id. at 4. (5) INTER-INDUSTRY BUNK BED SAFETY TASK GROUP, BUNK BED SAFETY GUIDELINE (Jan. 1, 1979). (6) "Adequacy of Provisions in Current ASTM Voluntary Bunk Bed Standard, ASTM 1427-94," U.S. Consumer Prod. Safety Comm'n (Mar. 3, 1995) (7) Voluntary Bunk Bed Safety Guidelines, 1986, Sects. 3.5.4, U.S. Consumer Prod. Safety Comm'n (Feb. 11, 1986). (8) "Options for Addressing Fatal Entrapment and Other Incidents Associated with Bunk Beds," U.S. Consumer Prod. Safety Comm'n (Mar. 20, 1995). (9) Id. at 2. (10) "CPSC Chairman Awards Safety Commendation to AFMA," Press Release No. 96-126, U.S. Consumer Prod. Safety Comm'n (May 16, 1996). (11) United States v. Cosco, Inc., IP95-1648C (S.D. Ind. settled Sept. 5, 1996).

Robert E. Gordon practices law with Davis, Gordon & Doner in West Palm Beach, Florida.
COPYRIGHT 1996 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Gordon, Robert E.
Publication:Trial
Date:Nov 1, 1996
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