Articles Posted in Product Defects

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The Seventh Circuit Court of Appeals in Chicago has reversed a federal judge’s dismissal of a Illinois product defect case. Donald Malen slipped while getting off his reconditioned riding lawn mower injuring his foot by the rotating blades of the mower. He and his wife filed a lawsuit alleging that the manufacturer, MTD Products, Inc. and the seller of the product, Home Depot USA, Inc. were responsible for the injury. The case,
Malen v, MTD Products, Inc. and Home Depot USA, Inc., No. 08-3855 (Nov. 19, 2010)., was originally filed the Circuit Court of Cook County, but was removed to federal court because of diversity of citizenship of the parties.

Before the plaintiff’s injury, he had been using riding mowers for more than 40 years. In 2001 Mr. Malen purchased a Yard-Man riding mower at Home Depot that was manufactured by MTD in 1998. The mower was advertised as a reconditioned model, with a full manufacturer’s warranty.

The mower was designed with a safety interlock system. One component of the safety system was the “operator presence control”, which would shut off the engine if the operator rose from the seat without first disengaging the cutting blade and setting the parking brake.

The mower also came equipped with a device that cut off the blades movement if the mower were put in reverse gear.

Plaintiff acknowledged that before the incident he had read and understood the admonishments found in the instruction manual and that over three years he had operated the mower 30-50 times without a problem. But in 2004, while Malen was mulching leaves with the mower, the right front tire became wedged over a curb. As he rose from the seat and stepped off the mower, his left foot slipped under the cutting deck where it was struck by the cutting blade.

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In a closely watched case involving federal preemption of product defect claims that a minivan was defective because its aisle seat lacked a lap/shoulder seat-belt, Williamson v. Mazda Motor of America, Inc., is angling its way to the Supreme Court. Williamson seeks to hold Mazda responsible for the death of Thanh Williamson, who was killed in a head-on collision in her family car, a 1993 Mazda minivan.

The Mazda minivan that Williamson was riding was equipped with lap/shoulder harness seat-belts except for the rear aisle seat where she was seated at the time of the crash. All of the other passengers in the van survived the incident. They were all harness seat-belted.

The United States has filed an amicus brief in support of the Williamson family, arguing that the lower courts have misread a similar Supreme Court case decided in 2000, Geier v. American Honda Motor Co, and that the family should be allowed to pursue their product liability case to its end.

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The National Highway Traffic Safety Administration (NHTSA) has issued a warning to users of 15-passenger vans to take specific safety steps in keeping its occupants safe. There had been two recently reported fatal truck crashes, one in New York and one in Georgia involving 15-passenger vans that have rolled over and resulted in ten deaths.

NHTSA has warned that tire maintenance is essential in preventing rollover crashes. Users of 15-passenger vans are cautioned to make sure that the vehicles have appropriately-sized tires that are inflated to the correct level before each trip. NHTSA has also recommended that spare tires not be used as replacements for worn tires. Fifteen-passenger vans have a history of tire wear that necessitates rotation of tires and/or replacement on a regular basis. Many tire manufacturers recommend that tires older than ten years old not be used at all.

Many of these vans are used for church groups, non-profit organizations, colleges and public schools.

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An Illinois Appellate Court recently ruled on spoliation issues in an Illinois product liability lawsuit. A spoliation claim can be brought if an entity, in this case Enterprise Leasing Company of Chicago, destroys or loses evidence that would be an important component of a potential lawsuit. Generally the court preserves an entity’s duty to preserve evidence; however, the trial court in Esther Brobbey, et al. v. Enterprise Leasing Company of Chicago, No. 1-08-3474, dismissed a spoliation claim against the car rental company.

When renting a 2003 Chevrolet Astro van from Enterprise, John Brobbey noted that the vehicle jerked and wobbled upon application of the brakes. He advised the agent of his findings before driving off with the vehicle and was told that the brakes were fine. However, two days later the brakes failed while Brobbey’s wife was driving the van, causing her to lose control. The vehicle rolled over several times and ended up landing in a ditch.

A little over a year after the Illinois auto accident, General Motors had issued a recall of its 2003 Chevrolet Astro vans regarding a suspension defect that could result in loss of control of the vehicle. Typically in an Illinois product liability case when a product defect is the potential cause of a party’s injuries the plaintiff needs to demonstrate that the specific product in question is defective. This is typically done by performing a thorough inspection of the product, which in this instance would be the Astro van. However, by the time the plaintiffs were aware of the recall the Astro van they were driving had already been destroyed, thus giving rise to the spoliation claim against Enterprise.

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A recent Illinois wrongful death case combined both medical malpractice counts and product defect counts. Susan Calles, et al. v. Scipto-Tokai Corp., et al., No. 07 L 4577, was initially dismissed on summary judgment, but was then returned to the trial court by the Illinois Appellate Court. The case has now concluded after reaching a settlement of $3.5 million; $1.5 million for the medical malpractice and $2 million for the product defect.

Calles involves the death of Jillian Calles, a three year-old girl who suffered smoke inhalation as a result of a fire her twin sister caused. The twin was playing with a butane lighter when she accidentally started the fire. The Illinois product defect claim alleged that the lighter design improperly lacked a child-resistant device.

Under product defect liability, a manufacturer may be held liable for a design flaw in its product if that flaw presents a danger to consumers that could have been eliminated. In addition, the danger must be a byproduct of the product’s intended use. For example, if someone becomes injured while balancing a chair on two of its four legs then this would not be the result of a design flaw given that the product was not meant to be used that way.

However, this caveat does not apply in Calles where the twin sister was obviously using the lighter correctly given that she was able to light it. Rather, the estate claims that the design should have prevented the three year-old from being able to use the lighter, period. The specific type of lighter was an Aim N Flame utility lighter manufactured by Scripto-Tokai.

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A recent Illinois Appellate court decision on a product liability claim reviewed the elements needed to prove strict liability in an Illinois product liability claim. In Charles Salerno v. Innovative Surveillance Technology, Inc., No. 1-09-1402, the plaintiff appealed the trial court’s decision to grant the defendant’s motion for summary judgment. The Appellate Court affirmed the trial court’s decision, but for different reasons.

The basis of the product liability claims in Salerno are centered around an injury the plaintiff sustained while working in a surveillance cargo van manufactured by the defendant. The van contained a video periscope system. The plaintiff’s injury occurred when he tried to stand inside the cargo van and struck his head on the metal periscope. According to the plaintiff’s product liability complaint, his severe head trauma and resulting seizures could have been avoided if the defendant’s product had not been unreasonably dangerous and defective.

The trial court granted the defendant manufacturer’s motion for summary judgment on the grounds that the risk of being harmed by the periscope was open and obvious and that the defendant had no duty to protect the plaintiff from any resulting injuries.

Upon review, the Appellate Court was critical of the trial court’s reason for dismissing the Illinois product defect lawsuit. In a prior decision the Illinois Supreme Court decided that a product’s open and obvious risk of harm does not constitute an absolute defense in a strict liability count. While this defense may be considered as part of the risk-utility analysis it can not constitute the only factor.

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A Cook County personal injury lawsuit involving an Illinois auto accident that left a 19 year-old girl a quadriplegic recently received a $6.05 million settlement. The bulk of the settlement in Perez v. Baeza, et al., No. 09 L 3958 came from Sparco, a distributor of race car seats that was involved in the case under product liability claims. Sparco contributed $6 million, which was the full extent of its insurance policy.

The events leading to the case began in 2005 when Perez’s boyfriend, Baeza, was driving them home from a quinceañera, i.e. a coming of age celebration for a 15 year-old girl. Baeza had been drinking and was speeding along when his car left the roadway and struck a tree. He was later charged with an aggravated DUI.

At the time of the Illinois car crash Perez was a passenger in the front seat. Baeza had modified the front seats of his car, replacing the factory-installed seats with race car seats distributed by the California-based Sparco Motor Sports, Inc. Perez was left a quadriplegic as a result of the auto accident.

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The U.S. Consumer Product Safety Commission (CPSC) has issued a recall on over 2 million drop-side cribs. Drop-side cribs are baby cribs whose sides raise and lower in order to make it easier for parents to lift their baby out of the crib. However, numerous reports injury or deaths resulting from repeated malfunctions of these movable sides has led to the widespread recall of drop-side cribs.

According to reports, these cribs’ product defect seems to result from a product design defect that allows the baby to slip into the gap that opens up when the movable sides separate from the crib. There have been reports of over 30 babies in the U.S. alone who have died as a result of the malfunctioning cribs and over 250 consumer reports of defective sides during the span of 2000 to 2009. The inherent dangers in these types of cribs has prompted a spokesperson from Kids in Danger, a Chicago-based advocacy group, to warn parents not to use a drop-sided crib.

A 2007 expose by the Chicago Tribune can be credited with first exposing the dangers that can result from the crib’s product defect. To date there have been approximately 9 million cribs recalled. For more information on the specific cribs included in the recall, visit the U.S. Consumer Product Safety Commission’s website.

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The Illinois Supreme Court will hear an Illinois product defect case to determine whether to affirm or remand a $43 million jury verdict against Ford Motor Co. in Jablonski et al., etc. v. Ford Motor Company, No. 11096. The Illinois product liability lawsuit included claims that the auto manufacturer negligently installed a rear axle fuel tank, which caused injuries to the plaintiffs following a high-speed, rear-collision auto accident.

The Illinois Appellate Court has already affirmed the lower court’s ruling, but Ford Motor Co. brings its arguments before the Illinois Supreme Court in an attempt to reverse the trial court’s rulings and resulting product defect jury verdict. Jablonski was filed after the plaintiffs were involved in a rear-end auto accident where their 1993 Lincoln Town Car was struck by a Chevrolet Lumina at 60 mph. The force of the collision propelled a pipe wrench laying in plaintiffs’ trunk through the trunk’s walls and into the fuel tank, which resulted in a fire that left the husband dead and the wife severely burned.

The 1993 Lincoln Town car was one of the four vehicles, including one designed for police, that was built with a fuel tank behind the rear axle. Plaintiffs allege that Ford was not only negligent in locating the fuel tank in that position, but it also failed to guard against and warn of the dangers of locating the fuel tank behind the rear axle.

Rather than filing a strict liability lawsuit, the plaintiffs’ brought a negligent design claim against the car manufacturer. While strict liability and negligence claims both require the plaintiff to prove that there was a design defect, the negligence claim also requires that the manufacturer knowingly failed to exercise reasonable care. Because there is an additional burden of proof under manufacturer negligence claims most product liability lawsuits include strict liability, not negligence claims.

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The National Highway Transportation and Safety Administration (NHTSA) has issued a General Motors recall regarding a variety of its vehicles due to a product defect. The affected 2006 to 2009 vehicles are equipped with heated washer fluid systems. The units are being recalled because of the potential risk of fires.

According to the notice the dealers servicing the defective vehicles would permanently disable and remove the heated washer fluid module. This is the second recall involving the heated washer fluid module. A 2008 recall attempted to insert a fuse to the unit in order to correct problems with electrical shorts. However, this modification might in fact be the cause of the potential fire hazard. GM has elected to completely remove the module instead of attempting any further modifications.

The safety recall is expected to start on June 14, 2010. Owners of the affected vehicles (listed here) may contact Buick at 1-866-608-8080, Cadillac at 1-866-982-2339, Chevrolet at 1-800-630-2438, Saturn at 1-800-972-8876, GMAC at 1-866-996-9463 and Hummer at 1-800-732-5493. Others may go to the General Motors owner center.

Further details of the NHTSA recall should go to the NHTSA website or visit www.safercar.gov.

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