Unreasonably Dangerous: Tip-Over Incidents & Recalls
Recently KY3 News shared on its website a recall notice concerning 9-drawer chests sold at Costco after a tip-over incident involving a child. According to the recall alert, the chests can be unstable if not anchored to the wall, posing tip-over and entrapment hazards that can result in death or serious injuries to consumers.
And these types of recalls especially when they involve the safety of children really get to me. I’m Personal Injury Attorney David Holub, and since 1982 I’ve been fighting the wrongdoings of the negligent so that my clients can feel whole again.
Many years ago, I was presented with such a similar tip-over case. And it was very emotional. I included that story in my book “Fighting For Truth: A Trial Lawyer’s Insight On What It Takes To Win.” If you have the book, great, this will be a reminder. If you don’t have the book, I’m including the story below. Safety should always be paramount when it comes to the products consumers use.
So here’s that story…
I am not sure what it is with me and small children, but this next case involved the death of a toddler when a large cathode-ray TV was accidentally tipped over by his young brother and sister and crushed the toddler. Like the vaccinia virus case, this case cried out to me, and thankfully we were able to make a recovery for the family, all of whom were understandably devastated by the loss of the young child.
Here is what happened. A four-year-old and eight-year-old were playing in their bedroom in front of an old family television that had been put on top of the kids’ dresser. Their brother was crawling around on the floor in front of the TV. The four-year-old sister playfully tried to block her older brother’s view of the television screen, and the older brother lifted his sister’s ankles up off the floor to his chest height so he could pull her away from the television. In an effort to continue blocking the screen, she held tightly onto the top of the television while her brother, began tugging on his sister’s ankles. After the third tug, the television she had been grabbing onto tipped forward off the dresser and landed on their brother. Hearing a loud sound, the mother rushed into the room to find her child crushed under the weight of the fallen television.
Though at the time we took this case the law was against us, and it was unlikely that we would prevail, our entire litigation team felt that the case simply had to be pursued. We argued that the television manufacturer’s product was unreasonably dangerous and unfit for its intended purposes. While the case ultimately was resolved via a confidential settlement, it was the first reported television tip-over case in the country to survive a summary judgment motion. This is the type of motion which judges usually decide against a plaintiff and use to dismiss a case and toss the claim out of court.
Unfortunately, as we soon learned, television and furniture tip-over incidents occur all too often. At a time in which people are purchasing large flat screen televisions for their living rooms, older televisions often are relocated to bedrooms, including children’s rooms, where they are commonly placed on top of a dresser. Many parents are unaware of the danger of television and furniture tip-overs.
Parents do not get a handout when their baby is brought home from the hospital warning them to anchor the television or other furniture to the wall with brackets and straps to prevent these pieces of furniture from tipping over and falling onto children and injuring them. On the other hand, new parents are often warned of the dangers posed by electrical outlets, or cupboards containing medications, solvents, and cleaning supplies. Consequently, few parents recognize the danger presented by televisions.
In many instances, it only takes a minimal amount of force applied to the top of the television to cause the tip-over. What often happens is, in an attempt to reach the television controls, a child pulls out and stands on dresser drawers or otherwise climbs, reaches, or grabs at the television, which causes the television to tip-over onto the child. The types of injuries that can occur from tip-overs include skull fractures, crush injuries, and death.
One difficulty in bringing a claim against a manufacturer of an older television is that the product may be near the ten-year statute of repose limit (if a product is older than ten years fails, the maker generally cannot be sued) or the manufacturer may be out of business. Manufacturers that are out of business may not have insurance to cover claims. Also, it is nearly impossible to collect money from a company that has long been out of business. In our case, the manufacturer was out of business when the complaint was filed, but there was an insurance policy covering the television.
The next challenge was finding corporate records for a defunct manufacturer. Additionally, it became crucial for us to do thorough research of medical and other academic journal articles about the type of product in question to see if its dangers had been documented in any published literature. Fortunately, we were able to find several medical journal articles by emergency department physicians who had treated dying children, who had been crushed in a television tip-over incident. The physician-authors warned about the dangers of television tip-over injuries and implored manufacturers to make safer products.
When we were reading the medical journal articles, we also learned that the Product Safety Working Group committee of the Consumer Electronics Association (CEA) had been approached by several of the article authors who wanted the televisions to be designed more safely or have stringent warnings affixed. We did a non-party request to obtain all of the minutes from the CEA’s Product Safety Working Group committee. These records were extremely helpful.
Armed with medical journal articles, we were able to pin down a former high-level engineer for the manufacturer during a deposition and establish that the manufacturer had participated in the meetings of the CEA’s Product Safety Working Group Committee. The engineer acknowledged that the type of tip-over dangers described in the medical journal articles were discussed in the safety group meetings. Also, he testified that, in general, the dangers noted in each of the medical journal articles were known to engineers in charge of the design and safety of the televisions well before they were sold.
Using the information gained in the deposition of the engineer for the manufacturer, we were able to successfully argue for the plaintiffs that the manufacturer sold the television in an unsafe condition, knowing it was unsafe, and nevertheless represented that the television was safe. The manufacturer had inadequately warned of the risks of the tip-overs and otherwise failed to disclose information about the proper use of the television, both of which arguably amounted to a design defect. Key evidence in our case showed that the manufacturer actually considered a retro-fit program and a post-sale warning campaign on the dangers of tip-overs, but did not take steps to implement either program, nor did it take steps to recall the product.
Helping this family was important to our team. Equally important, though was setting a legal precedent that hopefully will encourage manufacturers to set child safety as a top priority so that other children may be saved.
The Law Offices of David W. Holub is a personal injury law firm located in Merrillville, Indiana, focused on providing efficient and effective client-centered representation. Our mission is to provide top quality legal representation, which includes an uncompromising pursuit of our client’s legal interests, while being accessible and attentive to our clients during times of personal challenge.
The firm concentrates in personal injury cases of all types, medical malpractice, and wrongful death litigation. We work tirelessly to serve each client aggressively and with empathy, to communicate regularly and clearly, and to obtain prompt and favorable results, while adhering to the highest standards of excellence and integrity. Our team considers it a high honor to be called upon to serve our clients whom we often come to regard as our friends. Call our number (219)736-9700 for assistance today.
*If you would like to learn more about personal injury law, we encourage you to listen to our Personal Injury Primer Podcast where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law. And read “Fighting for Truth: A Trial Lawyer’s Insight into What It Takes to Win” an entertaining and enlightening book pulling readers into the courtroom giving them a glimpse of the legal process and what it takes to win at trial.