One of my favorite SNL sketches from back in the day was Dan Aykroyd as Irwin Mainway on the show “Consumer Probe.” Mr. Mainway made toys for kids such as Johnny Switchblade, Bag O’ Glass (part of the very successful Bag O’ line), and Teddy Chainsaw Bear. Classic! The comedy lies in the fact that the danger in these kids products is patently obvious to everyone.
Though it is a pain, always fill out and return the warranty cards that come with products – especially children’s products – so you know when a recall happens. A recall can be critical evidence in proving a claim. Without a recall notice, you are relying on the goodness of Mr. Mainway’s heart to give you notice.
We want people to design safe products. Fairly radical idea, I know. Stay with me. We also want people to make their products safe after they learn their product is not safe. This is especially true for products used in a a manufacturing or warehouse setting, where the risks of amputation or death are high from exposed gears or rollers on all types of molding and other machines.
Number 35 is alive!
And what better way to show that a product was dangerous in the first place than that the manufacturer made it safer by adding a guard or other safety device after an injury or death. If it was safe before, as they claim, why would they need to make any changes?
But Ohio law does not allow the jury to hear that the manufacturer made the produce safer. Why? The theory is that it would discourage manufacturers from doing the right thing and fixing their dangerous product. Such after-injury changes are called subsequent remedial measures.
What does this mean to you:
Even though after-injury changes are usually not admissible at trial, they can be used to learn other relevant, admissible evidence to prove your case by counsel.
Natalie Barnhard was working a fitness center as a trainer when a defective weight machine tipped and fell on her, crushing her vertebrae, and rendering her quadriplegic. Because the manufacturer denied all responsibility for its machine, Natalie pursued her case to trial, where the jury returned a verdict in her favor. The manufacturer appealed the verdict. Even though a jury of her peers had heard the case and already decided the amount she was to receive, the court of appeals in New York slashed the amount of money Natalie could receive. The ability for courts to, in effect, overrule a jury and reduce the award is called remittitur, and varies from state to state.
So why even bother pursuing a case if they just drag it out? In our legal system, individual people and their lawyers have the ability to hold the wealthiest companies responsible for their wrongdoing.
There is now a nationwide, searchable database to see if a particular product has been recalled by the manufacturer at http://www.recalls.gov/. This can be particularly helpful for items that may not gather as much national attention like cars or baby products.
We often hear of the concept of a “defective product” being something that physically breaks or malfunctions. And, as a parent who just survived another Christmas filled with plenty of plastic horse pucky, I could certainly provide several recent examples of just this type of defect in many different products.
But in Ohio, as in many states, any product can be defective in one or multiple ways. As an example, think of a riding lawn mower that rolls over and injures the driver. It may be that something happened while this particular mower was being manufactured at the factory causing it roll. This type of manufacturing defect is usually confined to one part coming off the line wrong. This same mower may also be defectively designed. That is, the way all the mowers were designed and created by the company creates a danger of rollover. What’s more, if the company should have known their mower would rollover, the product can also be defective if there is not an adequate warning about the risks and dangers of their mower.
Let’s hope Santa invests in some good R&D between now and December.