It’s all about the children

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.

Is he playing with Mr. Skingrafter?

But plenty of products for children are recalled for hidden problems and latent defects each year.  Everything from strollers to cribs to toys with magnets in them.  Time Magazine just did a story on these issues.

What does this mean to you:

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.

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Wait… what?!?

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.

Well that’s good to know

Did you know that 10 years after a product is made, it is no longer dangerous in Ohio?  Few!  What a relief!  I feel much safer now.

Is this some miraculous feat of magic that automatically renders products safe – anything from an industrial punch press in a factory to the toaster in your kitchen – after the specified time of 10 years?

On the contrary, it is merely a feat of legal maneuvering.  The General Assembly passed a law a while back called a statute of repose.  Statutes of repose start the clock ticking for when you can bring a case when the product is made, whether or not you even know of the defect yet.  These are different from statutes of limitations, which only start the clock running once you have been injured or at least know that something is wrong.  Because statutes of repose can cut off your right to bring a case before you even know you have a case, the Ohio Supreme Court struck down the law as unconstitutional.

But, suprisingly, when the General Assembly again passed the same law in 2005, this time the Ohio Supreme Court upheld the statute of repose!  This does nothing to make products safer, protect Ohioans, or encourage manufacturers to design safer products.  In fact, statutes of repose create an incentive to only make products safe for the first 10 years.  After that, no matter how dangerous the design and no matter how bad the manufacture was, the manufacturer is not responsible for any harm caused by their product in Ohio.

So much for extended warranties!

What does this mean to you?

Product liability cases often involve lengthy investigation.  The sooner a lawyer can research the product, the more likely the case will yield a successful result.