Now that the holidays are over, we are sure that your little ones are spending many hours enjoying the toys that Santa delivered. Please be aware, however, that Santa’s bounty may also include toys that pose significant dangers for your children. One of the most common items involved in product liability cases are children’s toys. Defective or faulty toys may cause serious injury or even death to your children.
According to the US Consumer Product Safety Commission (CPSC), in 2013, there were an estimated 256,700 toy-related injuries treated in U.S. hospital emergency rooms. Of the 256,700 injuries, an estimated 73% happened to children younger than 15 years of age. In addition CPSC staff received nine reports of toy-related deaths that occurred in the 2013 calendar year among children younger than 15 years old.
Many children are injured because they weren’t properly supervised. Other injuries occur because the parent failed to follow the toy manufacturer’s instructions properly. Serious injuries and even death can however also occur due to a toy being inherently defective or dangerous. Always be conscious of the fact that many toys are mass produced and assembled in third world countries, where quality is not nearly as important as quantity.
According to CPSC, the following are the common causes for toy-related injuries in children:
• Small parts of the toy that can choke children;
• Sharp edges or materials of toys causing cuts, grazes and deep lacerations;
• Strings, ribbon, and cords that can strangle a child;
• High amounts of hazardous chemicals; and/or
• High amounts of lead content.
The most common toys that cause injury include: Rocking horses, balloons, battery operated toys, toys with electrical cords, toys with sharp or jagged edges.
In accordance with the Consumer Product Safety Act (CPSA), US toy producing companies must ensure that their products are safe for children’s use and they should not contain any hazardous chemicals or materials. The Act gives CPSC the power to develop safety standards and pursue recalls for products that present unreasonable or substantial risks of injury or death to consumers.
What can you do about dangerous toy injuries?
Toy injury claims are based on the legal concept of Product Liability, alleging the toy was defectively designed or built. Regardless of the cause of your child’s injury, such as choking on a small part, or getting burned by a hot wire, the actual legal basis for your claim will lie in the negligence of the designer or manufacturer in the manner in which the toy was designed, produced or distributed. In order to successfully bring a products liability action for an injury to your child because of an alleged dangerous or defective toy, you must be able to prove four main elements, called your burden of proof.
These elements are:
1. The toy was defective;
2. The designer or manufacturer’s negligence caused the toy to be defective;
3. As a direct result of the negligence in the design or manufacture of the toy, your child was injured;
4. Your child’s injuries resulted in compensable damages.
The law states that the manufacturer of a toy must exercise reasonable care in its design and manufacture, so the toy does not unnecessarily harm a child. The law does not state the manufacturer has an absolute duty to ensure your child will not be injured by the toy.
If the injuries weren’t serious enough to require medical care, you probably don’t have a case. It’s not enough that your child sustained a minor cut or bruise, or momentarily choked on a piece of the toy. To have a valid personal injury claim, your child’s injuries must be serious enough to require medical care.
In addition to medical costs, you can also include out-of-pocket expenses (ex. medications, bandages, etc.), lost wages if you had to miss time off work to care for your child, and the pain and suffering your child endured as a result of the injury.
In an unfortunate scenario that your child gets injured due to a defective toy, the following are SUGGESTED TIPS for parents whose child gets involved in a toy-related injury:
1. Call the emergency department immediately– Have your child diagnosed by a physician in order to have the injury treated and to avoid further injury.
2. Follow doctor’s prescription – Once the injury is treated, strictly follow the doctor’s recommendations concerning medication and diet.
3. Document the incident – Keep medical records of your child and take note of the information regarding the incident. Make sure to document pieces of information regarding the toy that caused the injury. Include information such as the toy name, the manufacturer, and serial number of the product. If possible take photographs of the toy and of the part of the toy in particular that you claim is defective.
4. File a complaint with the CPSC – CPSC welcomes complaints about toy-related injuries. The CPSC has a number of resources that can help you protect your child including safety guides and tips for preventing accidents and injuries. The commission’s website also provides updated lists of products that have been recalled and the reasons why, as well as a consumer hotline and a link where you can report unsafe products. The website is http://cpsc.gov.
5. Consult Ridge & Downes Attorneys– Legal representation from highly specialized attorneys who are familiar with product liability cases is advisable if your child has been injured by a defective or dangerous toy.