Children’s toys and other products intended for children’s use are purchased throughout the country by parents every day and are expected to provide our children with hours of fun, entertainment, and safe diversion. The sad truth is that so many of these toys and products are defective in some way, making them dangerous to the health and safety of the children who use or are exposed to them.
In September 2014, for example, IKEA recalled approximately 2,000 of its GUNGGUNG Child’s Swings in the United States and another approximately 300 in Canada for a hazard stated by the U.S. Consumer Product Safety Commission (CPSC) to pose “a risk of serious injury” to children who use the swings. According to the CPSC report, the suspension fittings on the swings can break and cause children to fall from the swings. Several injuries, including one bone fracture, have already been reported.
The swings are intended for both indoor and outdoor use by children between the ages of 3 and 7 and were sold in IKEA retail stores around the country and through IKEA’s online store. Consumers who purchased these swings are cautioned to immediately take them down and prevent their further use by children. The swings can be returned to any IKEA store for a full refund of the purchase price.
is responsible when a child is injured or killed by a defective swing or other children’s product? Can the manufacturer be held liable for the child’s injuries even if the manufacturer has recalled the defective product? The answers to these questions may depend on the product liability law of the particular state in which a legal action seeking damages for a child’s injury or death caused by a defective product is filed.
Who Can Be Held Liable for Children’s Injuries and Deaths Caused by Defective Products?
When a child (or an adult) is injured or killed as a result of the use of or exposure to a defective product, the injured person or the deceased victim’s family may be entitled to receive financial damages from the responsible parties through the institution of a product liability or wrongful death action. Most states provide for product liability actions against certain defendants in the form of strict liability, negligence, and breach of warranty claims.
When a product liability action is brought to recover damages for someone’s personal injury or death (rather than, for instance, to recover the cost of a defective product’s purchase), the strict liability form of action is usually employed. Strict liability claims enable a plaintiff to establish a defendant’s liability without having to prove that the defendant was negligent. Thus, in a strict liability action for damages suffered by a child through the use of a defective swing or other children’s product, the plaintiff may satisfy his or her burden of proof by establishing that the swing or other product was defective at the time the child was injured, that the defect was a cause of the child’s injury, and that the child suffered legally compensable damages as a result. In some states, a plaintiff may also be required to show that the defective product was being used in the manner in which it was intended to be used at the time the child or other plaintiff was injured.
In the case of a death caused by a defective product, the same proof related to causation and liability would be required. The proof of damages would vary from that required in a product liability action for non-fatal injuries, however, as the damages recoverable in a wrongful death action for a death caused by a defective product are damages suffered by the deceased victim’s family as a result of the death rather than those suffered by the injured victim.
The defendants who may be held liable in a strict liability claims for injuries or death to a child as a result of a defect in a product generally include all those involved in the production and design of the product as well as those in the chain of the product’s distribution to the public. This may include the designer and manufacturer of a defective product; the designer and manufacturer of a defective component of a product; product component suppliers; product assemblers; and the wholesalers and retailers of the product.
Though sellers of defective products are not involved in their defective design or production, any seller of a product in a defective condition may be held liable for injuries caused to the product’s user, under the Restatement (Second) of Torts, Section 402A, as long as the seller is in the business of selling such products to consumers and the product is expected to reach the consumer in essentially the same condition it was in when it was sold. The seller is subject to strict liability even if the seller has taken all possible precautions in the preparation and sale of the product and even if the user who is injured by the product is not the person to whom the seller sold the product.
The defect in a product that may lead to the liability of any or all such defendants may occur at the design or manufacturing stage of production or as a result of the failure to warn consumers of certain dangers associated with the product’s use. Thus, even if a defect occurs at the design stage of a defective product’s production, the manufacturer and others in the chain of the product’s distribution may be held strictly liable, along with the designer, for injuries caused by the product’s design defect.
As strict liability is liability without negligence or other fault (such as knowledge of the existence of a defect when a product is released to the market), the manufacturer’s recall of a product does not generally relieve the manufacturer and others in the chain of the defective product’s distribution from liability for injuries or deaths caused by the product’s defect. Under most states’ product liability laws, a consumer’s notice of a product recall before the consumer’s injury occurs will also not relieve the defendants of strict liability for the consumer’s injury.
Obtain Expert Assistance from Child Injury Attorney Jeff Killino
If your child has been injured or killed as a result of a defective product of any kind, nationally recognized and respected child injury attorney Jeff Killino and his team of child accident and wrongful death attorneys will help you fight for the justice you and your child deserve from all those responsible for your child’s injury or death.