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What you need to know if your child was injured by a defective product
As a parent, worrying about your children is a full-time job. Whether it’s distracted drivers, unsupervised bodies of water, or injuries at school, there’s a lot to worry about.
Unfortunately, you can add toys to that list.
Some of these injuries are the result of children using the toy improperly, but many are the result of the toy being defective. If your child was injured or killed by a defective toy, you might be able to file a lawsuit to recover damages for their injuries.
This type of lawsuit is called a product liability lawsuit.
There are 3 types of toy-related product liability claims:
1. Manufacturing defect
A defectively manufactured toy is a toy that—though properly designed—left the manufacturer in a condition other than the one intended. To put it another way, some error occurred during the manufacturing process that caused the toy to become unsafe.
A manufacturing defect could be just about anything, but here are some common examples:
- The wrong type of screw was used on a mechanical part
- Two parts were attached incorrectly
- A critical component became cracked during the manufacturing process
2. Defective design
A product is defectively designed if it fails to perform as safely as a reasonable person would expect. In other words, nothing went wrong during the manufacturing process, the design of the product is simply dangerous.
For example, pool product maker S.R. Smith was forced to recall approximately 800 Helix pool slides because the sides of the slides were too short, making it easy for the children to fall off the side of the slide before reaching the water.
Similarly, Disney recalled 80,000 plush “forky” toys because the toys represented severe choking hazards.
To put it another way, if the toy was designed as intended but the design was dangerous, then you may have a defective design product liability case.
3. Failure to warn
Manufacturers have a duty to warn users of the dangers inherent in their products. To use the example above, if the Disney plush toy presents a choking hazard, the box should contain a warning to parents and perhaps an age restriction.
Manufacturers don’t have to warn about every conceivable danger. Rather, manufacturers must only warn about dangers that occur while the product is being used as intended or that can reasonably be anticipated.
To stick with the plush toy example, the toy isn’t intended to be put in a child’s mouth, but it can be “reasonably anticipated” that a child would put the toy in their mouth.
Notorious defective-toy cases
Unfortunately, there has been no shortage of high-profile toy-defect cases over the years. Some of the most notable include:
- CSI Fingerprint Examination Kit. This toy, based on the hit CBS show, included a white fingerprint powder that turned out to contain asbestos. The Asbestos Disease Awareness Organization ultimately settled with CBS and major toy retailers.
- Aqua-Leisure Inflatable Baby Floats. Aqua-Leisure’s inflatable floats were designed so that infants and toddlers could float safely in a pool. Unfortunately, the leg straps in the seat of the float were prone to tear, causing children to fall into the water. Roughly 4 million floats were recalled after 30 infants drowned.
- Moose Toys Little Live Pets. Moose Toys recalled 427,000 Little Live Pets due to chemical hazards. Specifically, when the batteries were removed, they ruptured and caused toxic chemicals to leak.
- Mega Brands Magnetix playsets. Magnetix playsets contained tiny magnets that were hard for parents to see and easy for children to put in their mouths. The magnets caused several children to experience severe intestinal injuries. In one case, a 22-month-old boy died after the magnets attached together in his intestines and slowly cut off the blood supply to parts of his bowels, causing the tissue to die and allowing gangrene to set in. The mother of the boy successfully sued Mega Brands and the US Consumer Product Safety Commission implemented a new safety standard test that toys with small magnets must pass before they can be placed on store shelves.
- Lawn darts. In the 1980s, lawn darts were all the rage. The darts, which had a weighted metal spike on the end, were intended to be thrown into a hoop positioned on the ground. Unfortunately, several children died after being struck by lawn darts and the toys were banned from the US and Canada.
How the US CPSC recalls defective toys
The CPSC was created in 1972 to protect the public from unreasonable injury risks associated with consumer products, including children’s toys. With only 500 employees, the CPSC has its hands full regulating over 15,000 product types (including 3,000-5,000 new toys introduced every year).
The CPSC works proactively with US Customs and Border Protection to prevent dangerous toys from entering the country. Over the last 4 years, over 8 million units of 4,500 different types of toys were blocked due to safety concerns.
In addition, CPSC works retroactively by responding to approximately 400,000 consumer complaint calls every year. Upon receiving a sufficient number of calls about a children’s toy, the CPSC investigates the claim and determines whether to issue a recall.
If the CPSC recalls an item, manufacturers can contest the decision. In most cases, companies voluntarily recall items after discussion with CPSC officials. As the recall occurs, the CPSC issues a news release to the public, alerting consumers who can either return, replace, or repair the hazardous item, depending on the remedy specified by the manufacturer.
You can find a current recall list (and searchable database) on the CPSC website.
Common defective-toy injuries
Defective toys can cause a whole host of injuries, including:
- Brain injuries
- Puncture wounds
How to establish liability in product defect cases
There are 2 primary ways to establish liability in a toy-defect lawsuit: negligence and strict liability.
In a product liability case based on negligence, you must prove that:
- The toy manufacturer owed you a duty of reasonable care (manufacturers owe a duty of care to all potential users of their products),
- The manufacturer breached the duty of reasonable care, and
- The manufacturer’s breach was the proximate cause of your (or your child’s) injuries.
In a product liability case based on strict liability, you DON’T need to prove that the manufacturer breached any sort of a duty. Rather, you only need to show that:
- A product was sold in an “unreasonably dangerous” condition,
- The unreasonably dangerous condition existed at the time the product left the manufacturer’s control, and
- The dangerous condition was the proximate cause of your (or your child’s) injuries.
Common defenses made by toy manufacturers
The primary defense in a toy-defect lawsuit is that the real cause of the harm was a modification or misuse of the product.
For example, if your toddler fills his water gun with boiling water and sprays it at his sister, the manufacturer of the water gun will argue that your toddler misused the water gun. The manufacturer will also argue that there was no way they could have foreseen that your toddler would fill his water gun with boiling water. Whether or not this argument is believable will be a matter for the judge or jury to decide.
Do you need a defective product attorney?
Product liability lawsuits are generally filed against large manufacturers that have teams of lawyers at their disposal. As a result, plaintiffs should be prepared for a fight.
An experienced product liability attorney can help you establish a claim by consulting with medical and manufacturing experts, and by investigating the manufacturer to determine what they knew about the potential defect and when they knew it.
If you’re having trouble locating a product liability attorney near you, consider using our free online directory.
See our guide Choosing a personal injury attorney.