By Dan Sherry
When one considers the field of products liability litigation associated with children, certain examples routinely come to mind. These include defective infant seats, toys painted with toxic paint, and cribs replete with asphyxiation risks. This paper will focus on two distinct, simple, and often overlooked products that children routinely encounter in retail and residential settings; specifically, blunt cut end display hooks (“BCEDH”), and windows without fall-arrest stops.
BCEDH — so named for the fact that the end of the hook is sheared off — are reliably located in most retail establishments. Generally, these products are little more than a thin 1/8th inch thick wire, ranging from four to thirteen inches in length, that has been molded into a certain shape, which is thereafter welded onto a bracketing system designed to affix to a pegboard or a gridwall, so as to allow versatility insofar as height and layout. As discussed below, the popularity and penetrating characteristics of the BCEDH render it a substantial hazard.
Anyone who has shopped in the past decade has come across a variant of the above BCEDH, which can usually be purchased for less than fifty cents. The diameter of the hook allows it to display merchandise in two different respects. The first allows merchandise with a hole insert to be slid onto the hook itself:
Regardless of the way the merchandise is displayed, the penetration hazard remains the same for a child who accidentally runs, trips, or turns, into a BCEDH. Indeed, a BCEDH shares many characteristics with a spear. The end is small in diameter which, combined with the smoothness of the hook, allows easy insertion into an eye, throat, abdomen, or between ribs. Moreover, because the wire is reinforced with a bracket, it is correspondingly unlikely to bend or yield when it is contacted by a human body. As a result, there is an unacceptably significant risk for impalement. While this hazard is most pronounced for children, the danger remains for adults, particularly those that slip or trip into a display. Our office presently represents the family of a retail store employee who was accidentally shoved into a BCEDH during an altercation with several shoplifters. The hook passed through his chest cavity, penetrated his heart, and caused an agonizing death.
There are multiple alternative feasible safer designs for BCEDH, all of which are rooted in the safety engineering hierarchy. This hierarchy, which is applicable to all products, dictates that dangers should be (1) eliminated by design if possible; (2) guarded against if elimination is impossible; and (3) warned against if guarding is impossible. The following are two examples of ways that display hooks can be manufactured that eliminate the potential for impalement while, at the same time, do not alter how merchandise is displayed by a retailer:
A final consideration that should be noted when investigating BCEDH- injuries is the high probability that the product will lack embossing or decals that identify the manufacturer. Currently, most BCEDH are manufactured in China. In certain jurisdictions, the identity of the manufacturer is immaterial, so long as the distributor that placed the BCEDH into the stream of commerce (often a U.S.-based retail supply company) is identified. However, for jurisdictions that require the actual manufacturer of the BCEDH to be named for a products liability claim, it is recommended that suit be filed well in advance of the statute of limitations, so that party-identification discovery can be propounded upon the distributor.
On a home front, the lack of window fall protection is another often overlooked danger in the realm of children-focused personal injury claims. Simply put, a window (be it casement, double-hung, single-hung, or gliding) that opens more than four inches represents a serious fall hazard for children five years and younger. This hazard remains regardless of the presence of an insect screen, which provides no meaningful protection. The measures designed to protect against this danger are addressed in an ASTM standard; specifically, “Standard Specification for Window Fall Prevention Devices with Emergency Escape (Egress) Release Mechanisms.” See Active Standard ASTM F2090.
Typically, window fall prevention devices can be categorized into three separate groups: (1) stops that prevent the window from opening more than a designated amount; (2) metal or high density plastic grates (often called guards) that can withstand the force exerted by a child; and (3) structural mesh that span the width of a window, similar to a decorative curtain.
Deficiencies associated with metal guards and structural mesh often sound in negligence, and are raised against window-installation contractors and architects (i.e. failure to install). However, when it comes to window stops, there is a growing consensus that fault lies with manufacturers, most of whom provide anti-fall protection only as an option for consumers.
Briefly, a window stop is a simple device that combines the safety of only allowing a window to be opened a finite amount by a child, but also allowing rapid disengagement when the window is accessed by a parent or rescue personnel. The following photo is instructive:
When the lower portion of the window is lifted beyond several inches, it is blocked by the raised stop, thereby eliminating the fall risk. These stops, which were traditionally purchased separately from a window, have started being offered as option equipment by window manufacturers. The diagram on the next page from Anderson Windows & Doors (which demonstrates the ability of the stop to work on all types of window configurations) is illustrative.
To date, no credible rationale has been provided as to why this equipment should merely be optional on any recently manufactured window. Indeed, pursuant to the previously-discussed safety engineering hierarchy, this is clearly a hazard that is unappreciated by young children, is likely to be encountered, and can be inexpensively safeguarded. Our office is presently in suit against a window manufacturer that failed to incorporate a stop in a double hung window. This window was eventually installed in a 3-year-old’s bedroom, with its base only three and a half feet off the ground. The child’s bed, which was adjacent to the window, allowed access to the window. The child pushed through the insect screen, and tumbled multiple stories to the sidewalk, resulting in a traumatic brain injury.