While most items on the shelves of our nation's stores are safe, that is unfortunately not always the case. We rely upon consumer organizations and the Consumer Products Safety Commission to help protect us from dangerous consumer products. The CPSC publishes recall notices, describing when manufacturers have either been ordered to withdraw unsafe products from the market, or where they have voluntarily agreed to recall, replace, or repair dangerous products.
When injury results from a product that is dangerously defective, it may be possible to bring a product liability lawsuit.
Sometimes, although a product is designed for a specific use, it will be foreseeable that the product will either be used for a different purpose or will be misused. Where a misuse is deemed reasonably foreseeable to the manufacturer, the manufacturer may be liable when the product fails to perform as expected when misused in the anticipated manner, possibly including a foreseeable modification of the item.
For example, it is foreseeable to a manufacturer that a small child might consume a cleaning product, and thus the manufacturer is under a duty to provide appropriate warnings on the bottle about proper storage, and possibly to provide a child-resistant cap.
One defense that may be available in a product liability lawsuit is the argument that the product was a "simple tool", and that the alleged dangerousness relates to an inherent characteristic of the product that cannot be eliminated without substantially compromising the products usefulness or desirability. Where a product meets this test, the manufacturer cannot be held liable for injury resulting from its careless use or misuse.
For example, a kitchen knife is potentially very dangerous, and can cause serious accidental injury in the hands of a child. However, to render a knife safe the manufacturer would have to dull the blade, and round off any point at its end, that would render it unfit and undesirable as a kitchen utensil.
Examples of consumer product defects that could give rise to liability include:
Children's Toys: Children's toys may be poorly designed such as to create a high risk of injury in the event that a child falls on the toy. They might have an inappropriate covering or coating, such as being painted with a lead-based paint. A very common defect is for a toy that is designed for or marketed to young children to include parts that are too small or that detach too easily, creating a choking hazard.
Baby Furniture: Poor design or construction of baby furniture may result in gaps or spaces that could allow a baby's head or body to become entrapped, creating a risk of choking, strangulation or suffocation.
Air Guns: Various types of air rifle have been alleged to have defective design or manufacture, creating risk of injury when children play inappropriately with the air gun or try to dislodge a jammed pellet or BB.
Infant Car Seats: A poorly designed or constructed car seat may fail to properly restrain a child during an accident, or may cause injury when the child strikes an unpadded portion of the seat.
Cosmetics: A poorly designed or constituted cosmetic product may cause a consumer to suffer chemical burns, or may trigger chemical reactions when used in combination with other cosmetics or beauty treatments, resulting in injury. Defective hair treatments may result in hair damage or even hair loss.
As the examples suggest, by virtue of their smaller size and inexperience, children are at particular risk from defective products.