William W. Hurst
Law Office of William W. Hurst, LLC
50 S. Meridian St., Suite 600, Indianapolis, IN 46204
The holidays are upon us, and with them come the usual accouterments: holiday music, cold weather, youthful yearnings for snow, and letters to Santa. For parents of young children bent on finding the perfect toy, it can be a stressful time. It can be difficult to identify what your child will enjoy, difficult to find it in stock, and then difficult to keep the child from spending more time with the box than the toy itself. One additional concern complicates matters even further, though: safety. Although children are spending more and more time glued to computer screens, play with toys—sometimes unsupervised play—still occupies a central place in many children’s free time portfolio. As a result, parents have to be wary of the toys they give their children. Every three minutes, a child is treated in an emergency room for a toy-related injury. It is important that concerned parents know what kind of dangers toys present, how they can assess the danger of toys they want to buy for their children, and what legal recourse they have in the event that their child is injured by a toy.
The danger in some toys is readily apparent—the pointiness of lawn darts or the ankle-bendiness of moon shoes immediately come to mind. Most glaringly, back in 1950, the A.C. Gilbert Company released its “U-238 Atomic Energy Lab.” It was exactly what it sounds like: a veritable chemistry set for children but which focused exclusively on radioactive material. It came with a Geiger counter, instructional manuals, and actual samples of radioactive uranium ore.
In many toys, though, the danger is less obvious. For instance, in 2007, CBS Corp released the CSI: Fingerprint Examination Kit and CSI: Investigation Forensic Lab Kit. The idea was straightforward: let children pretend to be the detectives they see investigating murders on the hit TV show. The danger was in the fingerprint powder: as it turns out, that powder was ridden with asbestos. Easy Bake ovens were recalled in the late 2000s because children could get their fingers stuck and seriously burned. Yo-Yo Balls were recalled because the cord presented a major strangulation threat. Sky Dancers were recalled because they had a tendency to seriously injure the faces of little children who got too close to the toys as they were launched into the air.
That all of those toys were eventually recalled is little comfort to the injured children and their parents. The recalls are even less comfort to a parent buying a toy without knowing it has already been recalled. Although major retailers will remove recalled toys from their shelves, online retailers frequently don’t afford consumers that same protection. The result is unwitting parents purchasing toys for their children without knowing the toy has already been found to pose a significant danger.
It’s one thing to tell parents to have common sense—a toy offering real-life radioactive material to little Susie ought to raise some red flags—but it is an entirely different thing to ask parents to intuit that a big, purple stuffed elephant called the Kids Time Baby Children’s Elephant Pillow is one of the most dangerous toys of 2016 due to the suffocation risk it presents to its target demographic. And that, truly, is the rub: toys with small pieces present serious choking hazards, larger stuffed animals present serious suffocation hazards, toys with sharp edges or which are designed to be launched present serious eye injury hazards, and the list goes on.
So what is a concerned parent to do? Fortunately, there are a number of resources available for parents to assess the danger of a given toy. Organizations like Kids in Danger (KID), World Against Toys Causing Harm (W.A.T.C.H.), and the federal government’s Consumer Product Safety Commission (CPSC) all research and evaluate the safety of certain toys. W.A.T.C.H. even puts out annual safety reports. Good Housekeeping Magazine also annually tests hundreds of toys and reviews them for, among other things, their safety. We discussed both in another post. But, as the old adage goes, the best-laid plans of mice and men often go awry.
Even the most diligent parent can find their child injured by a rogue toy. Fortunately, there may be some legal relief available to a parent or child. Indiana has a law called the Indiana Products Liability Act (IPLA)—found at Indiana Code 34-20-1-1. The IPLA governs lawsuits brought against sellers or manufacturers on the basis of defective goods. For a consumer of a good to bring suit, she must meet a few criterion. First, she must be a consumer or intended user of the product. In the case of toys, that would likely include the children for whom the toy was designed. Second, the seller or manufacturer must be in the business of manufacturing or selling such goods—meaning you likely will not be able to sue the guy from whom you bought your CSI Finger Print Kit on Craigslist. Third, the consumer must have suffered physical, as opposed to economic or emotional, harm. Fourth, the product must be in a defective condition. And fifth, the product reached the consumer without substantial alteration in its condition—meaning it cannot have been tampered with by some intermediary.
The challenge comes with the fourth requirement: that the product must be in a defective condition. There are three ways a product can be defective—there can be a defect in the way the product was manufactured, such as a loose screw or a frayed wire (called a manufacturing defect); there can be a defect in the way the product was designed, such as a toy with too sharp of an edge (called a design defect); or the product can lack adequate warnings of the danger it may present, such as a toy with small pieces marketed to young children that do not have a choking warning (called a warning defect). https://mckinneylaw.iu.edu/ilr/pdf/vol38p1205.pdf
To establish liability for defects in design or defects in warning, a litigant must prove that the manufacturer failed to exercise reasonable care in the design or choice in warning labels. As a practical matter, this means that the individual must show that a manufacturer knew or should have known that the product was designed poorly or required additional warning labels. Under these theories of recovery, an individual can bring suit against the manufacturer of the product or any seller in the chain of commerce that led to the consumer buying the product. For example, if Intel manufactures a defective computer part that is sold to Hewlett Packard, which is then sold to Best Buy, which is then sold to the consumer who is then injured, that consumer may sue Intel, Hewlett Packard, or Best Buy.
For products with defects in manufacturing, however, a manufacturer is liable regardless of whether it exercised reasonable care. Even if a manufacturer took every necessary precaution in the manufacture of its product, it can still be held liable for manufacturing defects. In practical terms, this means that a litigant does not need to concern himself with whether a manufacturer was negligent—he need only demonstrate that there was a defect in manufacturing, period. But, there’s a catch: for suits based on this theory of recovery, a litigant may only sue the manufacturer of the product or specific part of the product. If an Indiana court cannot exert jurisdiction over the manufacturer, though, the litigant may bring suit against the highest entity in the supply chain over which the court may exert jurisdiction—whether that is a supplier, a wholesaler, or a retailer. Note, however, that in any event, a litigant may not recover if she was using the product in an unsafe way that was not contemplated by the manufacturer.
If your child is injured by a toy this holiday season, it is important that you contact an experienced personal injury attorney right away. Although you have many years to bring suit, the longer you wait, the harder it is to prevail in court. An experienced personal injury attorney will help you through the process of documenting the injury, documenting the sale, investigating the product, and ultimately recovering from your child’s injuries.
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