Hidden burn hazards at home: litigating claims for children burned by seemingly innocuous household products poses unique challenges.
While many products are subject to government regulations and industry standards, compliance is not often enforced. Even compliance does not guarantee safety. Some products that regulatory agencies acknowledge are too hazardous for the market remain available for purchase despite having been recalled, since recalls don't automatically remove a product from the market. Rather, they impose an obligation on the manufacture to notify the consumer of the potential danger. The most insidious products either are or look like toys, and thus lure unsuspecting children toward harm.
Products liability claims arising from burn injuries to children at home pose unique challenges. But there are tools you can use to develop theories of liability against the manufacturers of such products and ways to address typical defenses.
Regulations and standards
The definition of defect differs from state to state, but products are generally considered defective if they fail to perform as reasonably expected for their intended use. (1) Safety regulations and standards can provide direct support for allegations concerning defective design, inadequate warnings, and negligence in the development and testing of a product.
The U.S. Consumer Product Safety Commission (CPSC) is charged with protecting the public from unreasonable risks of serious injury or death from more than 15,000 types of consumer products. (2) It helps consumers evaluate the comparative safety of products by developing safety standards and disseminating information about dangerous products. (3) Unfortunately, the CPSC's enforcement activity has decreased in the past few years, and more dangerous products are reaching retail shelves. (4) Nonetheless, the CPSC remains a good resource.
Even if the product involved in your client's injury is not directly regulated by the government, many nongovernmental organizations establish safety standards for products. The American National Standards Institute (ANSI), Underwriters Laboratories, Inc. (UL), and the American Society of Safety Engineers issue voluntary safety standards for thousands of products. Industry standards can effectively reveal the defects in household products and the manufacturers' failures in designing and testing them.
These are common scenarios in which children suffer product-related burns at home:
Mattresses and mattress pads. Suzie and Sally, both eighth graders, decided to try their first cigarette while sitting on Sally's bed. When Sally leaned over to hand the cigarette to Suzie, it dropped on the mattress pad, and before either girl could pick it up, the mattress pad burst into flames. Both girls were severely burned.
CPSC rules provide a basis for establishing the liability of the mattress pad manufacturer: The pad was highly flammable in violation of 16 Code of Federal Regulations (C.F.A.), part 1632. (5) Recognizing that cigarettes can come in contact with mattresses and mattress pads under a variety of circumstances, including a smoker falling asleep, the CPSC adopted specific standards for cigarette-induced fires in mattress pads and mattresses.
Part 1632 provides a test for a cigarette dropped on a mattress or mattress pad: If obvious ignition occurs, the materials fail. (6) The test is very specific, describing the type, length, and packing density of the cigarette to be used. (7) The Flammable Fabrics Act also applies in many fabric-fire incidents. (8)
Electronic toys. Johnny fell asleep using his video game player and left it on. The heat generated in two hours started a fire that burned Johnny and destroyed the house.
Part 1505 of Title 16 of the C.F.R., titled "Requirements for Electrically Operated Toys or Other Electrically Operated Articles Intended for Use by Children," provides an excellent source of proof of manufacturer liability. It says that a toy shall not present a fire, casualty, or shock hazard when operated continuously for six hours under conditions of normal use and reasonably foreseeable damage or abuse. (9)
The regulations specify how toys should be designed and tested for performance: "A toy shall be designed and constructed to have the strength and rigidity necessary to withstand reasonably foreseeable damage and abuse without producing or increasing a shock, fire, or other accident hazard." (10) It also indicates how far this duty extends: "An increase in hazards may be due to total or partial structural collapse of the toy resulting in a reduction of critical spacings, loosening or displacement of one or more components, or other serious defects." (11) Clearly, Johnny's video game was not properly designed or tested because it started a fire in far less than six hours.
Novelty lighters. When four-year-old Andrew saw the car-shaped cigarette lighter sitting on the table, he grabbed it. He rolled up a piece of paper into a "cigarette" and started flicking the lighter, like he had seen his dad do many times before. Andrew was able to produce a flame and light the paper, which he instinctively threw down when it became engulfed. It ignited a bedspread and burned Andrew over 20 percent of his body.
The CPSC has issued federal regulations for all lighters, including novelty lighters like the one that started a fire in Andrew's room. All lighters must be resistant to successful operation by 85 percent of children in a test protocol explicitly described by the regulation. (12)
The C.F.R. defines a novelty lighter as one that is entertaining to, appealing to, or intended for use by children under five years of age, and it lists examples: "lighters that depict or resemble cartoon characters, toys, guns, watches, musical instruments, vehicles, toy animals, [or] food or beverages, or that play musical notes or have flashing lights or other entertaining features." (13)
Exploding caps. Danny put one cap cartridge in his new cap gun and one in his pocket. When he crouched down, the caps exploded in his pocket. Danny suffered second-degree burns to his genital area.
The CPSC has not issued regulations directly pertaining to caps or cap guns, but it has explicitly acknowledged the hazard of caps exploding in children's pockets. In 1979, the agency issued a release announcing that Acme Specialties Corp. had voluntarily recalled plastic ring caps. The release indicated that caps had fired while in children's pockets and caused first- and second-degree burns. (14)
Since then, the CPSC and many other government agencies that protect consumer safety have repeatedly announced recalls and identified the hazards of cap guns (15)--yet they remain available for purchase. An attorney representing the victim of an exploding cap should make an issue of government agencies' longstanding awareness of the hazard.
Tipping stoves. When Lisa turned her back to put boiled sausages on a plate, her five-year-old son Abraham, weighing 40 pounds, came into the kitchen, opened the oven door, and stepped up to check on the progress of his snack. The stove lurched forward, and the pot of scalding water splashed onto Abraham's torso and legs, causing third-degree burns to his thighs.
Both ANSI and UL have issued standards for stoves. ANSI standard Z21.1 and UL 858 require that freestanding gas ranges be supplied and installed with an anti-tip device. (16) A typical anti-tip device is a slotted metal plate fastened to the floor with screws, the stove's rear leg levelers slide into the slot, holding down the rear of the stove. Both standards also require stove doors to pass a load test: An open oven door must be able to sustain a load of 75 pounds for five minutes when the oven is installed. (17)
The compliance defense
A manufacturer's compliance with safety regulations can present some challenges to the plaintiff attorney pursuing a products liability claim. A defendant's argument that it complied with applicable safety regulations or standards may impress a jury and make it less inclined to find the product defective. In some jurisdictions, compliance with safety standards is a defense based on the doctrine of federal preemption. Although this defense has arisen infrequently in consumer products liability litigation, it remains a possibility. (18)
In one case of injury caused by a consumer product, the plaintiff's claim was found to conflict with the Consumer Product Safety Act (CPSA). (19) In Frith v. BIC Corp., a 10-year-old was producing sparks from a lighter when he passed a gasoline container. The sparks caused an explosion. The plaintiffs argued the lighter should have been designed so that a 10-year-old would not be able to operate it, but the court found that the claim was preempted by the CPSA because it would have imposed a higher safety standard on the lighter than CPSC regulations did. (20)
Most courts, however, have found that the act does not preempt state-law products liability actions. For example, in Colon v. BIC USA, Inc., a federal district court rejected the preemption argument and allowed a products liability lawsuit involving a six-year-old boy who was burned after setting his shirt on fire with a lighter. (21)
In some states, evidence of compliance with government regulations and industry standards is inadmissible in a strict liability action because it shows the defendant's reasonableness in designing the product as it did, which is a negligence concept. (22) In these jurisdictions, all negligence concepts are inadmissible in strict liability actions because such actions focus exclusively on the product, not the conduct of the parties. (23)
While this rule offers plaintiffs desirable protection from potentially damaging evidence, it also makes it more difficult for them to submit evidence of a defendant's failure to adhere to safety regulations. Nonetheless, such evidence may be admissible for certain limited purposes, including to establish the manufacturer's awareness of hazards relevant to its design of the product. (24) Plaintiffs might also present evidence of noncompliance with safety regulations on cross-examination to rebut testimony that the product's design incorporated safeguards against all known hazards.
Evidence of a recall notice generally is not admissible to establish that a product is defective. (25) However, there are other means of getting recall information in front of a jury. For example, evidence of a recall generally is admissible to establish that the defect existed in the product while in the manufacturer's hands. (26) The ultimate test of the admissibility of recall notices is relevance: If a product has been recalled for a reason unrelated to the injury, the recall notice probably will not be admitted. (27)
A product that complies with industry standards and government regulations does not necessarily possess every element needed to make it safe for its intended use. It is possible to find a defect in the design of a product that complies with every applicable safety standard and regulation.
For example, in Abraham's stove tip-over case, an engineer could find fault with the design of the stove even if it complied with the ANSI standard. Extra weight added to the rear lower body of the stove would have prevented it from tipping over when Abraham stepped on the open door. Alternatively, the manufacturer could have sold the stove with an interlock switch, preventing it from operating unless the antitip plate was installed.
Nothing prevents a plaintiff from developing a theory of defect that is not covered by a safety standard. Indeed, many standards-issuing bodies, including those mentioned above, include some manufacturer representatives, who are naturally concerned that the standards reflect the industry's interests. In the attorney's role as advocate, you must carefully analyze all design aspects of the injury-producing product, independent of any safety regulations.
Blaming the victim
Defendants in products liability actions involving injuries to children commonly raise the misuse defense--that the manufacturer should not be held liable for injuries that occurred when its product was not being used as it was intended. For example, in the stove tip-over case, the defendant might argue that it should not be held liable for injuries Abraham suffered when using the stove door as a step because it was not meant to be used that way.
Closely related is the unintended-user defense--that the manufacturer should not be held liable for injuries to people the manufacturer did not intend to use the product. In the case of the lighter, the defendant might argue that it should not be held liable because its lighters are sold to and made for adults, an assertion buttressed by the presence of a child-resistant device.
Federal and state courts generally hold that the intended use of a product includes any use that is reasonably foreseeable to the seller. (28) A particular use may be considered foreseeable even if the precise manner in which the injury occurred was not. (29)
Courts have rejected the unintended-user defense even in cases involving very young children. For example, a 17-month-old toddler-who was trapped in a hospital bed was found to be an intended user of the bed, and a 15-month-old child was found to be an intended user of a Playskool block set whose box was labeled "Ages 1 1/2-5." (30) On the other hand, in a case where a three-year-old was injured by a BIC lighter, summary judgment was sustained on the basis that the lighter's intended use did not include use by toddlers. (31)
Whether arguments that a child's action is reasonably foreseeable will succeed depends on the law of the jurisdiction, the disposition of the trial judge, and the evidence. For example, in rebutting a defense argument that a child's putting caps in his pocket was an unforeseeable misuse, you may have an opportunity to present evidence that other caps were recalled due to the danger of pocket explosions.
In cases involving electronic toys, the C.F.R. provides strong support when countering allegations of misuse: "Each toy shall have an enclosure constructed of protective material suitable for the particular application, for the express purpose of housing all electrical parts that may present a fire, shock, or other accident hazard under any conditions of normal use or reasonably foreseeable damage or abuse." (32) This regulation is a potent weapon for plaintiffs bringing a design defect claim for a dangerous toy. While a toy might look good on the drawing board, in the real world it is subject to being dropped, smashed, kicked, or otherwise assaulted by children. Therefore, the common defense used in adult products liability cases--that the plaintiff misused or abused the product--largely does not apply to children, regardless of age.
Another common defense tactic is an allegation of comparative fault. Defendants may attempt to blame the incident on a lack of parental supervision or on the child's own carelessness. Most states hold that comparative fault principles apply to strict liability claims, but some states--including Indiana, Nevada, Ohio, Oklahoma, Pennsylvania, and South Dakota--do not apply any form of comparative fault to these actions. (33)
The comparative fault defense is largely absent in cases involving toys. A parent can hardly be faulted for permitting a child to play with a toy--clearly made for children--and the child can hardly be faulted for moderately abusing it.
The case of Sally and Suzie smoking presents a more difficult challenge. The attorney in such a case faces not only the legal argument that the danger was obvious but also the emotional argument that the conduct itself--children smoking--is objectionable. Regardless of whether the manufacturer complied with regulations, the plaintiff must show why it should be held liable for activity that the injured children knew was dangerous, that the injured parents might have prevented with proper supervision, and that seems at first blush unrelated to where the cigarette fell.
To address the defense of comparative negligence, you should show that the parties' circumstances were dramatically different. The manufacturer made its decisions about design in the calm of the design-and-testing facility, and it had time to review all the safety data about ignitions caused by cigarettes on mattresses. The girls, on the other hand, were unaware of the danger of a highly flammable mattress or mattress pad, and they had little time to react to the emergency situation caused by the flame up of the pad. You can argue persuasively that the fault of the manufacturer, which had superior knowledge and unlimited time, greatly exceeds the fault of the children.
Representing children who have been burned by dangerous products has its pitfalls, but attention to pertinent safety standards and preparation for common defenses can ease the task.
(1.) E.g., Allison v. Merck & Co., 878 P.2d 948 (Nev. 1994); see also LOUIS R. FRUMER & MELVIN L. FRIEDMAN, PRODUCTS LIABILITY [section] 8.01(5) (2002).
(2.) See U.S. Consumer Prod. Safety Comm'n Web site at www.cpsc.gov/about/about.html (last visited Mar. 21, 2005).
(3.) 16 C.F.R. [section] 1000.1 (2004).
(4.) Caroline E. Mayer, Unsafe Products Reaching Retail Shelves, Consumer Reports Says, WASH. POST, Oct. 5, 2004, at E01.
(5.) See 16 C.F.R. part 1632 (2004).
(6.) See id. [section] 1632.3.
(7.) See id. [section] 1632.4(a) (2).
(8.) 15 U.S.C. [subsection] 1191-1204 (2000).
(9.) 16 C.F.R. [section] 1505.6 (2004).
(10.) Id. [section] 1505.4(d).
(12.) 16 C.F.R. [subsection] 1210.3, 1210.4 (2004).
(13.) Id. [section] 1210.2(d) (2004).
(14.) Press Release, U.S. Consumer Prod. Safety Comm'n, No. 79-031, Plastic Ring Caps for Toy Guns Recalled (June 29,1979), available at www. cpsc.gov/cpscpub/prerel/prhtm179/79031. html (last visited Mar. 21, 2005).
(15.) E.g., Press Release No. 92-002, U.S. Consumer Prod. Safety Comm'n, Nationmark, Inc., Recalls 8 Shot Cap Guns (Oct. 2, 1991), available at www.cpsc.gov/cpscpub/prerel/prhtm192/ 92002.html (last visited Mar. 21, 2005); TEXAS DEP'T OF STATE HEALTH SERVS., PROD. SAFETY DIV., TOY/CHILD PRODUCT SAFETY, available at www.tdh.state.tx.us/beh/ps/ child.htm (select "miscellaneous") (last visited Mar. 21, 2005).
(16.) AM. NAT'L STANDARDS INST., Household Cooking Gas Appliances, No. Z21.1-1993; UNDERWRITERS LABS., INC., Household Electric Ranges, No. 858.
(17.) Id. This requirement applies if the door is 36 inches or less off the ground. If it is higher than that, the door must be able to sustain a load of 50 pounds.
(18.) David G. Owen, Federal Preemption of Products Liability Claims, 55 S.C.L. REV. 411,438 (2003).
(19.) 15 U.S.C. [subsection] 2051-2083 (2000).
(20.) 863 So. 2d 960,961 (Miss. 2004).
(21.) 136 F. Supp. 2d 196, 205-06 (S.D.N.Y. 2000); see also Moe v. MTD Prods., 73 F.3d 179, 182-83 (8th Cir. 1995).
(22.) Lewis v. Coting Hoist Div., Duff Norton Co., 528 A.2d 590, 594 (Pa. 1987).
(23.) Kimco Dev. Corp. v. Michael D's Carpet, 637 A.2d 603 (Pa. 1993).
(24.) See Pacheco v. Coats Co., 26 F.3d 418, 423 (3d Cir. 1994).
(25.) FRUMER & FRIEDMAN, supra note 1, [section] 57.05 (2) (a) (citing Vockie v. Gen. Motors Corp., 66 F.R.D. 57 (E.D. Pa. 1975)); Harley-Davidson Motor Co. v. Carpenter, 350 So. 2d 360,361 (Fla. Dist. Ct. App. 1977).
(26.) See Carey v. Gen. Motors Corp., 387 N.E. 2d 583, 587-88 (Mass. 1979) ; Manieri v. Volkswagenwerk A.G., 376 A.2d 1317,1322-23 (NJ. Super. Ct. App. Div. 1977).
(27.) FRUMER & FRIEDMAN, supra note 1, [section] 57.05 (2) (c).
(28.) Parks v. AlliedSignal, 113 F.3d 1327, 1331 (3d Cir. 1997) (interpreting Pennsylvania law); Horton v. Burhke, Div. of Klein Tools, 926 F.2d 456, 460 (5th Cir. 1991) (applying Louisiana law); Ellsworth v. Sherne Lingerie, Inc., 495 A.2d 348, 355 (Md. 1985).
(29.) Eschbach v. W.T. Grant's & Co., 481 F.2d 940,943 (3d Cir. 1973).
(30.) Stratos v. Super Sagless Corp., No. CIV. A. 93-6712, 1994 WL 709375, at *4-*5 (E.D. Pa. 1994); Metzgarv. Playskool, Inc., 30 F.3d 459,463 (3d Cir. 1994).
(31.) Griggs v. BIC Corp., 981 F.2d 1429, 1433 (3d Cir. 1992).
(32.) 16 C.F.R. [section]1505.4(f) (2004) (emphasis added).
(33.) See FRUMER & FRIEDMAN, supra note 1, [section] 8.04(5) (a), (d).
EUNICE TREVOR practices with Saltz, Mongeluzzi, Barrett & Bendesky in Philadelphia. RICHARD HALPERT practices with Halpert, Weston, Wuori & Sawusch in Kalamazoo, Michigan.
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|Date:||May 1, 2005|
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