New York Noncompete, Trade Secret & School Negligence Blog

Safety 1st Recalls Over 900,000 Defective Child Safety Locks

After receiving hundreds of complaints, Safety 1st is forced to recalls over 900,000 defective child safety locks.

When Companies (Dell) Resort to Absurdities to Conceal Defective Product Design

Long Island, New York defective design and product lawyer Jonathan Cooper discusses how the attorneys prosecuting the defective design claims against Dell computer revealed the sordid details of the computers' failures, and how this provides a textbook example of how to prove a defective design claim under New York law. For additional information on how to prove a defective design claim under New York law, please see https://www.jonathancooperlaw.com/library/how-to-prove-that-a-product-was-defectively-designed-under-ny-law.cfm, or contact Jonathan Cooper directly at 516-791-5700.

Shocker: Toyota's "Fixes" Of Gas Pedal Defect Apparently Don't Work

In this blog post, Long Island, New York Toyota recall and products liability attorney and author of "Why There Are So Few Successful Defective Products Lawsuits" Jonathan Cooper discusses how, by attempting to conceal the problems with their cars (which they apparently still have not fixed), Toyota has certainly earned the public's distrust. For additional information on product recalls and how they affect defective products lawsuits generally, you can download a Free copy of Jonathan Cooper's eBook on defective products lawsuits under New York law at www.ProductsLiabilityBook.com, or contact him directly at his Long Island, New York office at 516.791.5700.

CPSC Announces Largest Defective Children's Crib Recall Ever

Published author of the Insider's Guide to Product Liability Claims entitled "Why There Are So Few Successful Defective Products Lawsuits," discusses the largest children's crib recall in history. For additional articles and valuable information on crib recalls and other defective product recalls generally, please visit Long Island, New York Defective Products Lawyer's website and blog at www.JonathanCooperLaw.com.

As noted in our description of the AP's video news report on the mass recall of over 1 million defectively designed Maclaren strollers, the recall was apparently prompted by 12 reported incidents of children whose fingers were partially amputated when they became caught in the strollers' side hinges.

This begs two important questions:

(1) Why did it take so many incidents where children were quite seriously injured before the conclusion was reached that these products needed to be recalled ? (Unfortunately, this is NOT the first time we are asking this question); and,

(2) Given the severity of this safety defect, why didn't Maclaren's testing of these strollers reveal this problem before the products ever made it to the marketplace?

I think it is safe to assume that the answers to these questions will only be learned when Maclaren is sued for one of these children's injuries. And I have no doubt that those lawsuits are coming.

Earlier today, the U.S. Consumer Products Safety Commission issued a press release reminding everyone in the chain of distribution of children's products, from manufacturers and distributors to resellers and retailers that many of the provisions of the Consumer Product Safety Improvement Act become effective tomorrow.

Interestingly, one of the provisions of the Act that has received the least attention (most of the Act is focused on the lead level in children's toys) may have the most promise in terms of its likelihood to improve product safety: new labeling requirements.

Under the Act, manufacturers are now required (unless manifestly impractical) to put permanent tracking labels on any consumer product that is targeted for use by children aged 12 and younger. These tracking labels must identify the name of the manufacturer and its location, the date the product was manufactured, and must specify information from the manufacturing process itself, including the lot or batch number.

The immediate and practical benefits to this provision are twofold:

1. At the first hint that a product may be defectively designed, and a recall may be needed, it will be far easier to identify which specific products need to be recalled, and concurrently, to track where the recalled products were sold. As a natural consequence, it should make product recall efforts far simpler and more effective.
2. It will help claimants who have been injured by a defective product to identify with greater specificity the potentially responsible parties, and thereby reduce the litigation costs borne by parties with no real connection to the products at issue.
   

Earlier today, in conjunction with the launch of its campaign to prevent re-sellers of consumer products from introducing into the stream of commerce various products that were the subject of safety recalls (an earlier study concluded that almost 75% of re-sellers failed to comply with the Federal law prohibiting the re-sale of recalled consumer products) the U.S. Consumer Products Safety Commission released its Top Ten List of Recalled Children's Products.

Interestingly, this announcement does not clarify why these particular products made the "Top Ten" list. While some may be inclined to think that this is a cheap marketing gimmick, or a vain attempt at humor (ala David Letterman), my reading of the description of incidents that led to the recall of these dangerous products convinces me that this is not the case. The distinguishing characteristic of these products? Unlike many other consumer safety recalls, the design defects in these particular products (mostly defective cribs) led to several wrongful deaths.

That said, I am still troubled by a few aspects of the CPSC's press release. One, if the stated goal of the Top Ten List is to garner and focus the public's attention on the unique dangers presented by these particular children's products, then they should say so. And rather than just issue a simple press release, they should broadcast this list all over the news, and post videos on the internet that demonstrate the manifest dangers of these products. Second, if the government went to the trouble of conducting a study roughly ten years ago which assessed whether re-sellers of consumer products were compliant with Federal law barring the re-sale of recalled products, why wasn't a companion study done to assess what measures could be implemented to improve compliance. Wouldn't that have been more important than the first study?

In the near-daily bombardment of announcements of defective product recalls, it is hard for any one recall to really stand out, especially if it does not involve an egregious safety hazard. But, every once in a while, a relatively minor product recall can distinguish itself, if only because the circumstances underlying the recall are unusual, or simply off the beaten path.

Yesterday, the CPSC announced one such recall. And it was noteworthy in two respects: first, this recall has absolutely nothing to do with the actual design of the product - it had to do with the product's instructions. Second, and in the same vein, it wasn't simply a question that the instructions were inadequate or unclear (just imagine if that were the standard that companies employed to issue recalls); rather, they simply forgot to include a critical set of instructions regarding the swing seat's harness.

Consequently, this product recall is distinct from the garden variety recall because it touches upon a failure to warn claim rather than a defective design claim. For more information on the distinctions between these two different types of defective products claims, please see "Why There Are So Few Successful Defective Products Lawsuits."

As reported in our news section, earlier this week, the U.S. Consumer Products Safety Commission, in a joint announcement with its sister organization, Health Canada, announced that nearly 90,000 gas grills were recalled after they had collectively received a whopping 161 reports of fires, burn injuries, and other assorted personal injuries, including loss of hearing, due to the defective design of these Chinese-made grills. And these complaints were all logged in less than 3 years.

Apparently, the fire hazard with this particular product, the Blue Ember Gas Grill, is that the gas tank's hose is set too close to the firebox.

In analyzing this news story, two questions immediately come to mind - and its not the first time we've raised these issues (see "CPSC's Recall of (Yet Another) Defective Crib Raises Questions About Recall System in General"):

1. Why did it take so many reports of grill fires before this latest round of the recall became effective?; and,
2. Why didn't the first round of recalls of this product in 2008 solve this problem?

The fact that these questions need to be asked is certainly troubling.

How Product Safety Recalls Can Help Prove A Defective Products Case in NY

Long Island, New York product safety recall and defective fan attorney Jonathan Cooper discusses how a government recall of a product can be helpful and effective in proving a product liability case under New York law. For additional information on this topic, as well as products liability cases in general, please order a copy of Jonathan Cooper's FREE guide to defective products cases, Why There Are So Few Successful Defective Products Lawsuits, by going to www.ProductsLiabilityBook.com.

In New York, Sometimes The Best Case Is One That Isn't A Case

In this article, Long Island, New York product liability lawyer Jonathan Cooper discusses why many, if not most, cases involving personal injuries that arise from the use of a household or commercial product are not viable product liability cases under New York law. For additional information on this topic, please download or order a FREE copy of Jonathan Cooper's book, Why There Are So Few Successful Defective Products Lawsuits from www.ProductsLiabilityBook.com.

On July 2, the Consumer Products Safety Commission, in conjunction with Aqua-Leisure Industries, recalled over 4 million children's inflatable boats and rafts, after they received over 30 complaints that the straps which secure the children's legs had a tendency to rip, causing the children to fall into the water. Although, thankfully, no drowning incidents have been reported due to this problem, it bears repeating that in terms of New York law governing defective products (or "products liability"), this is a classic example of a design defect. For additional information on what factors determine what a plaintiff must prove to succeed on a defective products claim, you can download the free eBook, "Why There Are So Few Successful Defective Products Lawsuits."

On June 10, the Consumer Products Safety Commission, or CPSC, announced yet another recall of a children's crib after finding that a defect in the design of this crib, particularly the faillure of spring pins, caused the crib's drop side to become completely detached from the crib, thereby posing both a strangulation and fall hazard to infants.

While that seems fair enough, the question that both puzzles and frightens me is this: why did it take over 30 reports of the drop side of the crib failing before the recall was issued? Stated differently, considering the manifest danger posed by many children's products - and cribs in particular - why wasn't the (investigation concluded and) recall issued earlier?

Thankfully, from the statement issued by the CPSC regarding this particular product recall, it does not appear that they have received reports of anyone being seriously injured by this product. But given the numbers, it seems that this is in many respects due to good fortune rather than good practice.

Following a recent story on CNN which reported that Chrysler's bankruptcy filing would mean that personal injury lawsuits against the auto manufacturer would now effectively be barred, the predictable response from tort reform advocates of "WHO CARES," was prominently displayed in the blog comments section of the report. My response to that is simple: you should. And here's why: even if you don't drive a Chrysler, someone else who's on the road with you just might. And if no one in the manufacturing  or distribution chain of that vehicle has any incentive to make sure that their consumers are apprised of any defects in the vehicle, whether in its design or manufacture, guess who's being put at risk? That's right - not only the drivers of those vehicles, but everyone around them, including you and me. So before anyone's too quick to dismiss as inconsequential this corollary to Chrysler's bankruptcy filing, perhaps they should take a broader view of the broader impact on consumer safety, and consider the possible impact on them.

After a trial that recently took place in Brooklyn's federal court, a jury found that Black & Decker, which manufactured the lawnmower, was liable to the plaintiff, who lost his fingers in the cutting blades of one of its lawnmowers, because the lawnmower was defectively designed. The significance of this case lies in the second part of the jury's finding, however: although the jury held that the lawnmower was defectively made, in that the Black & Decker lawnmower's on/off switch was too readily turned on, which was a safety hazard, and further held that this defect was a significant factor in causing the plaintiff's personal injuries, they also held that by forgetting to unplug the mower before performing maintenance on the machine, the plaintiff was 90% responsible for his own accident. Consequently, despite finding that the plaintiff's loss of his fingers was worth $2 million, the plaintiff was only awarded $200,000.

So, why is case is blog-worthy? Because it provides one of the clearest demonstrations of how New York's comparative negligence doctrine works in a practical way. More importantly, I believe that this case shows the wisdom of some facets of our judicial system, in this case, the comparative negligence doctrine.  Although some might be inclined to side with Black & Decker in this case, and might even go so far as to say that the plaintiff should never have brought this lawsuit, especially considering the high degree of culpability that the plaintiff bore for his own accident (I admit that I probably would have rejected this case had it come to my office for this very reason) I think that this attitude is wrong both on public policy grounds, as well as for this specific case and plaintiff. Simply put, had this case never been brought, Black & Decker would have had no incentive to make their lawnmower safer for consumers by making it more difficult to accidentally engage the power switch, even though it is apparently a relatively simple modification. And without this case, the plaintiff would have been denied monetary compensation that Black & Decker owes him for their share of the fault for his accident.

In a case from Orange County in California that was reported yesterday, a jury held the local municipality liable for causing the collision between a car and the teenage boy’s bike, as a result of which the boy sustained serious personal injuries, including the loss of one leg below the knee.  From the news report, it seems fairly clear that the government intends to appeal the jury’s $8 million plus verdict, because from their vantage point, it is manifestly unfair to cast the lion’s share of liability on the municipality when they had no direct role in the bike and car crash; they did not own or operate either the car or the bike.  While, at first blush, the municipality’s argument seems meritorious, if you think a bit more critically, you will realize that their argument contravenes what we know from our everyday, real-world experience.

There are some intersections and streets that have had such a disproportionately high number of tragic car accidents and fatalities over the last several years (such as Queens Boulevard in Forest Hills and Rego Park in Queens County, New York, which the local papers have dubbed the “Boulevard of Death”) that it is clear to all that these roadways are defectively and dangerously designed.  Consequently, the better public policy is to hold the municipalities and states liable for these conditions; otherwise, these governmental entities will have far less incentive to assure the safety of their roads.

For additional information as to whether governmental or municipal authorities are liable for the dangerous conditions of intersections and roadways under New York law, you can read our article here.