Fall Risk Prompts Fisher-Price "3-in-1" High Chair Recall

Fisher-Price on Tuesday announced that it is recalling a popular combination high chair/toddler booster seat, because a defect involving the booster seat's release mechanism can pose a fall hazard for infants and toddlers.

The recall includes about 24,000 Fisher-Price "3-in-1 High Chair to Booster" chairs that were sold exclusively at Target stores nationwide, from December 2008 through March 2009, for around $100. The affected product number (P5369) can be found on the side of the high chair seat, on a seat pad label, and on the packaging. Check out a step-by-step online guide from Mattel's Consumer Relations Answer Center, to find out whether a specific high chair is affected by the recall.

The "3-in-1 High Chair to Booster" can convert from a high chair to a booster seat via a few adjustments. But here is the problem that prompted the recall: "The seat can fall backwards from high chair frame if the booster seat release is unlatched while the child is in the product. Also, the seat back can detach if not fully snapped in place, posing a fall hazard and risk of serious injury to young children," according to a News Release from the U.S. Consumer Product Safety Commission (CPSC).

Fisher-Price/Mattel has received one report of an infant skull fracture suffered in a fall that may be linked to the discovered hazard. The company is instructing parents and caregivers to stop using the recalled high chairs immediately and contact Fisher-Price for instructions and a free repair kit.

• Fisher-Price Recalls 3-in-1 High Chairs Due to Fall Hazard (CPSC.gov)
• Online Guide: Is Your High Chair Affected by the Recall? (Mattel.com)
• WebMD: Fall Risk Prompts High Chair Recall
• Defective and Dangerous Products (FindLaw)
• Legal Issues in Product Defect Cases (FindLaw)
• Personal Injuries from Dangerous or Defective Products (provided by Berger and Green, Attorneys at Law)

Child Safety: 9 Out of 10 Accidental Poisonings Occur in Home

The vast majority of accidents involving children and unintentional poisoning occur in the home and are caused by the ingestion of common consumer products, according to figures released last week by the U.S. Consumer Product Safety Commission (CPSC). So, how can you make your home safer and protect your children?

Each year, accidental poisonings prompt more than 2 million calls to poison control centers, result in about 80,000 children being treated in ERs, and cause about 30 child deaths, according to a CPSC Press Release timed to conincide with National Poison Prevention Week (March 15-21). More than 90 percent of these emergencies stem from incidents in the home, including ingestion of medications, cleaning products, even things like lamp oil.

CPSC urges parents and caregivers to take three key steps to protect children from accidental poisoning in the home: 1) keep medicines and chemicals in original, child-resistant containers, 2) store potentially dangerous substances up high and out of a child’s sight and reach, and 3) keep the national toll-free poison control center phone number handy at all times (1-800-222-1222) in case of emergency. Learn more about ensuring your kids' safety: 10 Things to Think About: Preventing Childhood Injuries.

• CPSC Press Release on Accidental Child Poisonings
• 10 Things to Think About: Preventing Childhood Injuries (FindLaw)
• Health and Safety in the Home (FindLaw)
• Centers for Disease Control: National Poison Prevention Week (CDC.gov)
• Poisoning in the U.S.: Fact Sheet (CDC.gov)
• Poison Prevention Week (PoisonPrevention.org)
• This Week in Safety: Poison Prevention (ConsumerReports.org)
• Personal Injury Law Information Center (provided by The Law Firm of M. Paul Fischer, P.C.)

Cassara Family's Lawsuit Against New York's Playland Settled for $1.25 Million: Sufficient Staffing Part of Operating Amusement Parks Safely

A tentative settlement of $1.25 million has been reached in the lawsuit brought against Westchester County, New York, by parents of a 7-year-old boy killed in an amusement park ride accident. The Playland amusement park was noteably featured in the Tom Hanks film "Big" and the ride at issue was an 80 year old ride with no prior history of fatalities.

The child's parents, Robert and Elayne Cassara of Norwalk, Connecticut brought the suit against the county, which operates the amusement park, and the AP summarized the circumstances of the accident:

"The boy was on Playland's Ye Old Mill ride, in which boats move gently in the dark through scenes populated by gnomes and trolls. He got out of his boat soon after the indoor ride started. He somehow ended up in its channel of water, dead from a blunt head injury."

Apparently, officials in the case conceded that the ride was not adequately staffed, which can open up the door to liability in a negligence lawsuit such as the one in the Cassara's case. Amusement and water parks are regulated to varying degrees at the state and local level (portable amusement rides have federal oversight), and common law negligence principles may apply where there are no specific laws. In the case of New York, the state does regulate and oversee amusement parks. For example, under the state's laws on amusement park rides:

"An operator shall be in the immediate vicinity of the operating controls during operation and no other person shall be suffered or permitted to handle such controls during normal operation. No operator shall be responsible for the operation of more than one amusement device at a time."

Another AP story also detailed testimony about how the park's own policy "called for at least three workers on Ye Old Mill, in which boats move gently in the dark through scenes populated by gnomes and trolls" and how "[t]here were only two workers when Jon-Kely Cassara" got on the ride. Regardless, even though regulations and policies will vary from state to state and park to park, adequate staffing and proper training of staff are common elements in the safe operation of an amusement park.

• AP: NY amusement park death lawsuit settled for $1.25M (Yahoo! News)
• AP: Official: Fatal NY ride shouldn't have happened (newsday.com)
• Amusement Park Information Page (provided by Biren | Katzman - Trial Lawyers)
• New York Amusement Park Ride Laws (NY Dep't of Labor)
• Standards and Safety Regulations for U.S. Amusement Rides (Saferparks.org)
• Amusement Park Accident News (RideAccidents.com)
• National Association of Amusement Ride Safety Officials
• Wrongful Death Overview (FindLaw)

Smoking Smarties the Next Hazardous Fad for Kids?

Most people are probably familiar with the little rolls of powdery, sugary candy "tablets" frequently given out at Halloween. Yes, we're talking about "Smarties", but the little candy has been making unwelcome news headlines lately, with stories of kids "smoking" the candy.

Apparently, the practice isn't really so much "smoking" (there's no fire involved), as much as snorting or inhaling and then blowing out candy "smoke". Kids have taken to this practice for a variety of misguided reasons. One teen told the Wall Street Journal that "smoking Smarties [is] a 'cultural phenomenon' and says he likes it because 'it looks like you're smoking something but you're not.'" One YouTube user thought of it more as a prank, "To freak your mom out, sit behind a chair and just blow smoke up in the air with your mom in the room."

The WSJ described how kids go about smoking Smarties as follows:

"They crushed it into a fine powder in its wrapper, tore off one end, poured the powder into their mouths and blew out fine Smarties dust, mimicking a smoker's exhale."

That doesn't sound exceedingly alarming at first glance, but health experts say that "smoking" smarties is not too smart. A Mayo Clinic nose specialist "cautioned that frequent use could lead to infections or even worse, albeit rare, conditions, such as maggots that feed on sugary dust wedged inside the nose." It's probably tough for parents to come up with something more effective to convince their kids not to try this fad than by telling them they could end up with maggots up their nose.

Although a quick online search doesn't turn up any noteable injuries associated with smoking Smarties for purposes of legal liability, the candy's maker, Ce De Candy of New Jersey, is still not thrilled with this kind of publicity. The company's vice president of sales and marketing, Eric Ostrow, told the WSJ that smoking their product is "just dumb." However, the Business Insider also noted just how easy it is for an undesireable fad to catch fire in today's social-media world. Even though many of the YouTube videos were made long ago, it is only recently that one "video now appears near the top of the Google results page in a more general search for just 'Smarties.'" Ostrow continued, "It's certainly not endorsed by us. We don't endorse smoking, but we can't control what people do out there."

Companies face a tough task in how they deal with their brand and/or product being associated with an undesireable practice, such as smoking (which Ce De Candy actually banned at its factory in the 1980s, well ahead of its time). Although many might say that any PR is good PR, the association of kids, candy, and smoking might be a bit much. But for now, the company is apparently opting to simply disassociate itself with the practice and hope that the whole issue will blow over.

On the bright side, recent news stories have highlighted a government study noting that "[f]ewer teens are sniffing glue, lighter fluid, spray paint, shoe polish and other easy-to-find substances." Regardless, parents still might want to go ahead and just give their kids a heads up to be smart and just eat their Smarties.

• Wall Street Journal: Just Say No....to Smarties? Faux Smoking Has Parents Fuming
• Business Insider: Candy-Maker Tries To Ignore Kids Pretending To Smoke On YouTube [with Videos]
• Products Liability FAQ (provided by Hefferon & Hefferon, P.A.)
• AP: Fewer teens sniffing inhalants to get high (WRAL)

Eagle Scout Brian Lenz Gets no Jail Time for Deadly "Ring of Fire": Prosecutors Have Wide Discretion in Charging Crimes and Making Deals

Two words that probably don't get put together often in any word association game are "Scout" and "criminal". Fortunately for Brian Lenz, an Eagle Scout accused of aggravated assault stemming from a deadly trick-gone-wrong, it's going to stay that way for him. The AP reported today that Lenz "appeared in court Thursday to plead not guilty to aggravated assault and was admitted into a pretrial intervention program that will enable him to avoid jail time or even a criminal record."

The AP described the tragic incident which led to today's plea, stating that last year on a "hot July night at Boy Scout camp" at the Joseph A. Citta Reservation in Waretow, New Jersey, 18-year-old camp counselor Lenz:

"decided to show the younger boys a trick: the "circle of fire," in which he would squirt rubbing alcohol in a pattern on a table and set it aflame.

It would look cool. And it would quickly burn out.

When Lenz tried to reignite what he thought was a dying flame, fire leapt from the table along the stream of liquid, back into the squeeze bottle he was holding.

Instinctively, he shook his hand, flinging the burning bottle away and inadvertently spraying flaming alcohol onto the other scouts..."

One of the three Scouts burned, 17-year-old Sean Whitley, died four days later, while the other two recovered from their injuries. Lenz, however, ended up in serious legal trouble, sued by Whitley's family and also criminally prosecuted for his actions. However, the end result in this case might have some wondering why authorities even bothered pursuing Lenz criminally, considering the circumstances.

Prosecutors have wide discretion as to the extent to which they charge, prosecute, and/or make deals with individuals suspected of criminal offenses. However, in this case Executive Assistant Ocean County Prosecutor Michael A. Paulhus indicated they only took the route of the pre-trial intervention (PTI) program after the prosecution "...spoke extensively with the victim's parents and they agreed to this disposition".

The Asbury Park Press story continued, "[h]ad the Whitley family not agreed with Lenz's admittance to the PTI program, Paulhus said, his office was prepared to seek a criminal indictment from a grand jury." Although most people picture assault as an intentional crime, one law firm's site outlines New Jersey's aggravated assault statute and explains the varieties of assaults included. Noteably, under the state's aggravated assault statute, a person can be guilty of third degree aggravated assault in a variety of ways including when in "under circumstances manifesting extreme indifference to the value of human life [he] recklessly causes such significant bodily injury" or also if he "[c]auses bodily injury by knowingly or purposely starting a fire".

Going back to the Eagle Scout's case, as noted by Paulhus, "[t]he Boy Scouts of America have long-standing and effective policies ... The situation that took place was kids doing what kids weren't supposed to be doing." Fortunately for Brian Lenz, successful completion of the PTI program will allow him a second chance at moving on without a criminal record.

• AP: Prank at Scout camp ended 1 life, changed 3 others (Google News)
• Asbury Park Press: Boy Scout to enter pre-trial intervention (www.APP.com)
• New Jersey Aggavated Assault Charge (provided by the Law Offices of John F. Marshall)
• How People Get Charged with Crimes (FindLaw)

Natasha Richardson Dies After Ski Accident: The Need for a Living Will and Durable Power of Attorney

CNN reports that Natasha Richardson, the award-winning actress and wife of Liam Neeson, has passed away after a ski accident. The news may have many people understandably wondering about the fragility of life and health. After all, Natasha Richardson was relatively young at 45, and by all accounts healthy, vibrant and full of life. Adding to that, she suffered the fall while skiing on a beginner's slope. The accident has renewed calls for helmets while skiing, but while there may be merit to those suggestions, some suggest that a helmet might not have made any difference.

Although questions about whether Richardson's death might have been prevented are already being asked, the circumstances leading up to her tragic passing, particularly her apparent incapacitation and the decision to take her off of life support, do emphasize the importance of taking on a task that people often overlook or put aside for later. A FindLaw poll conducted last year indicated that nearly 60 percent of Americans don't have a will.

Hand in hand with that fundamental problem, which affects a person's assets and their children, is the fact that the same individuals probably make no legal provision for what would happen if they become incapacited and unable to express or communicate their wishes. Aside from leaving their own health care desires unfulfilled in the event of a tragedy, this can also leave a person's family to make difficult choices in an already emotional and stressful situation. In a worst-case-scenario, such uncertainty can end up in drawn-out legal battles over a person's fate.

There are a variety of legal tools that can be used to address the issue, but two in particular stand out. First, a living will, which can also go by the name of a healthcare directive or directive to physicians, is a document that expresses a person's desires and preferences about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. Living wills are allowed in all states, but sometimes they must follow specific formalities to be effective. If valid, a living will binds health care providers to its instructions.

The second tool people may have heard about is a durable power of attorney for health care or health care proxy. A durable power of attorney for health care is somewhat similar to a living will, but functions to actually put the health care decision-making power in the hands of another person (an "attorney-in-fact"). The document can then direct the attorney-in-fact to carry out a living will's instructions, or alternatively, use their own judgment in following a course of action. Unlike a living will, a durable power of attorney does not depend on terminal illness or permanent unconsciousness to become effective, but instead is used if the person is unable to make their own healthcare choices (permanently or otherwise).

In the event a loved one is stricken with a sudden illness or tragic accident, the last thing a family probably wants to deal with is any arguments over health care decisions. The use of a living will and a durable power of attorney are good ways to keep what is already a difficult time from becoming even tougher.

• CNN: Natasha Richardson dies after ski fall
• NY Times: Natasha Richardson, Stage and Film Star, Is Dead at 45
• FOX News: When Is the Right Time to Turn Off Life Support?
• State Laws: Living Wills (FindLaw)
• Healthcare Proxies and Living Wills (provided by Frederick J. Martorell Esq, PC)
• Undiagnosed and Misdiagnosed Closed-Head Injuries (FindLaw)
• Estate Planning Forms (FindLaw)
• Common Types of Brain Injuries (FindLaw)

DJ AM Adam Goldstein, Victim of Plane Crash with Travis Barker, Asking for $20M in Damages from Learjet and Others

A court document filed today indicates that DJ AM is looking for $20 million in damages from Learjet and other defendants for the airplane accident that left him and former Blink-182 drummer Travis Barker with severe burn injuries. Four others, including the pilots, as well as Barker's assistant and bodyguard, were killed in the crash which occurred in South Carolina on Sept. 20 of last year.

The AP noted that DJ AM, whose real name is Adam Goldstein, is "seeking $10 million for medical expenses, lost earnings, profits and economic damages and another $10 million related to non-economic losses, such as mental and physical pain".

In January, Learjet denied responsibility for the accident in court papers, specifically stating "Learjet alleges that any and all conditions [of the aircraft], if any there were, were solely a result of the failure to properly maintain and service the aircraft". Furthermore, Learjet suggested that "the damages suffered by the plaintiffs were 'either excessive, exaggerated, unreasonable, speculative, inflated or otherwise unnecessary and/or unrelated to the alleged incident.'"

Airplane accidents, as can be imagined, are very complex and the lawsuits stemming from such accidents usually involve a variety of defendants, ranging everywhere from the manufacturers of the plane and its parts, to the pilots and owners of planes, and even providers of planes' maintenance. The lawsuits arising from this accident are no exception as the finger of blame has been pointed everywhere from the pilots, to Goodyear (who made the plane's tires), to the airport.

An earlier article noted that federal aviation officials were "focusing on bare tires and debris on the runway as the causes of the crash". The National Transportation Safety Board (NTSB), which is the agency charged by Congress with investigating every civil aviation accident in the United States, has preliminarily indicated both that "the wheels had very little rubber remaining and its brakes were severely damaged" and that the "cockpit voice recorder indicated that crewmembers expressed their belief that a tire blew as the jet was on the runway."

However, various of the companies being sued have asked for a delay until the government's investigation is entirely complete.

• AP: DJ AM seeks $20 million for plane crash damages
• People: Learjet Denies Responsibility for Travis Barker Plane Crash
• NY Times: Full Recovery Expected for Crash Survivors
• People: DJ AM Files Lawsuit in Fatal Learjet Crash
• CBS News: 4 Dead In S.C. Plane Crash
• Airplane Accidents and Injuries Overview (provided by Panter, Panter & Sampedro, P.A.)
• Accident & Incident Data (Federal Aviation Administration)
• Accident Database & Synopses (National Transportation Safety Board)
• Injury and Accident Center (FindLaw)

Family of Charla Nash, Travis the Chimp's Attack Victim, Sues for $50 Million

The family of Charla Nash has sued Sandra Herold, the owner of the chimpanzee who mauled Nash, for $50 million. While Nash remains in critical condition, the lawsuit claims that Herold caused the attack by negligently and recklessly owning a wild animal that she could not control.

Nash has remained in critical condition since the Travis Chimp mauled her on February 16. As reported by the Greenwich Times, the attack cost Nash her hands, lips, nose, eyelids and bone structure in her mid-face. She has also suffered significant brain damage.

Nash was a friend and employee of Herold, and had long known Travis. As covered previously in this blog, she was called over to Herold's house to help calm Travis, who had been agitated all day. According to the AP, Herold has speculated that Travis attacked Nash because he did not recognize her. She had changed her hair, was driving a different car, and waived a stuffed animal in front of her face to get his attention.

Nash's twin brother Michael was named her temporary conservator, allowing him to make medical and legal decisions on her behalf. In addition to the lawsuit, lawyers representing Nash have demanded an accounting of Herold's assets in order to prevent her from transferring them.

Local prosecutors are still deciding whether to file criminal charges against Herold. According to the Greenwich Times, police are still waiting for the results of toxicology tests on Travis. Herold initially stated that she had attempted to calm Travis on the day of the attack by giving him Xanax. She has since said that she did not give the chimp Xanax.

Though Connecticut has a dog bite statute which renders a dog owner strictly liable for most injuries caused by their dog, the statute does not cover normally wild animals such as chimpanzees. Generally, this means that the victim must prove negligence on the part of the owner -- that the owner knew or should have known of the animal's dangerous propensities.

As the case of Travis may well show, proving that someone should be aware of a wild animal’s propensity for danger may not be such a high hurdle. As reported by the AP, two people have claimed that Travis previously bit them (in 1996 and 1998). Additionally, an escape by Travis in 2003 prompted an animal control officer warn Herold that she needed to keep him under control.

• Travis the Chimp Shot by Police: Chimp Attack and Death Renew Calls for National Ban on Chimps as Pets (FindLaw's Common Law)
• Slain chimp's owner now says it wasn't on Xanax during Feb. attack (LA Daily News)
• Primatologist Jane Goodall speaks out about chimpanzee attack (LA Times' LA Unleashed)
• Proving Knowledge of an Animal's Vicious Propensities (provided by the Reeves Law Group)
• Negligence (FindLaw)
• Conservatorships and Guardianships (FindLaw)

Lawsuit Claims iPod Touch Exploded, Burned Child: Lynette Antrobus v. Apple an Isolated Case?

Is it getting to the point where you can't hold your favorite piece of portable technology without worrying about your health? It has been bad enough, what with reports of exploding cell phones, or spontaneously combusting laptops, but now the news perhaps many consumers dreaded. Yes, it's the Apple iPod's turn to face the, ahem, fire. A complaint has been filed by a Kentucky mother, Lynette Antrobus, claiming that her son's iPod Touch exploded in his pocket, burning him.

The complaint described the event, stating that her son, A.V. was sitting at his desk at school in Kentucky "with his Apple iTouch in the off position in his pant's pocket." A.V. then "heard a loud pop and immediately felt a burning sensation on his leg." Upon standing he "realized his Apple iTouch had exploded and caught on fire in his pocket" then ran to the bathroom and took off his burning pants with a friend's help.

Setting aside the emotional and psychological disaster that the possible loss of someone's treasured musical vault could entail, the injuries allegedly suffered by the child in this case were nothing trivial. According to the complaint, A.V. "suffered second degree burns to his leg" and "continues to suffer from both physical and mental conditions which will cause him to suffer pain, mental distress, emotional distress, and otherwise for the rest of his life." The suit sets out a variety of theories of liability for the various defendants, including, strictly liability for the defective product, as well as a failure to adequately warn. The bottom line for the injuries suffered by plaintiff, however, adds up to over $200,000 in various types of damages, including punitive damages for defendants' "malicious" actions.

At this time, there has been no comment from Apple on the case, but this isn't the only time someone has reported an exploding iPod Touch (the iPod nano also reportedly had some incidents), so it remains unclear whether this is an isolated incident, or something that could require action from Apple in the future.

• Complaint in the Case (Antrobus v. Apple) (FindLaw)
• Ars Technica : iPod touch—not lies—sets kid's pants on fire; parents sue
• Times Online: Man killed by 'exploding mobile phone'
• ConsumerAffairs.com: "Exploding" Dell Laptop Destroys Truck, Imperils Outsdoorsmen
• Products Liability FAQ (provided by McGowan, Hood & Felder LLC)
• Dell Announces Recall of Notebook Computer Batteries Due To Fire Hazard (U.S. Consumer Product Safety Commission)
• engadget: Japan orders Apple to investigate exploding iPod nanos
• Injury and Accident Center (FindLaw)
• Product Liability: Background Information (FindLaw)

Ten Arkansas Daycare Kids Poisoned After Drinking Windshield Wiper Fluid "Kool-Aid": Are Your Children Safe at Daycare?

In a story likely to make any parent's hair stand on end, the AP reported today that a staffer at a daycare facility in Arkansas mistakenly served windshield wiper fluid to ten children under their care.

Laura James, a pediatric pharmacologist and toxicologist at Arkansas Children's Hospital in Little Rock told the AP about what led to the accident:

"'All we know was that the individual at the day care had recently shopped and had come back to the day care with a lot of different products,' James told The Associated Press. 'This product was mistakenly grabbed and thought to be Kool-Aid and put in the refrigerator.'"

"Doctors estimate the children, ages 2 to 7, drank about an ounce of the blue fluid late Thursday afternoon before realizing it tasted wrong", said James.

Fortunately, just one of the children was still hospitalized on Friday "after blood samples showed 'measurable levels' of methanol, a highly toxic alcohol that can induce comas and cause blindness, officials said."

Day care facilities are licensed and regulated differently from state to state, but they do share certain general requirements, such as base levels of training, and staff to child ratios, which vary depending on the age of the children being watched. Generally, the younger the children, the more staffing that will be required.

As far as safety rules go, noteably, Arkansas licensing standards specifically state that:

"... 3. All medications and poisonous substances shall be kept in separately locked areas."

A spokeswoman for Arkansas' Department of Human Services told the AP that the operator of the daycare, Carolyn Bynum, already gave up her state license, and thus won't be able to care for children in the future (unless issued another license, of course). Indeed, spokeswoman Julie Munsell noted:

"She was so upset about what had occurred and she was definitely worried some of the children had been injured," Munsell said. "It was just a mistake, she says. She says it was just a horrible mistake."

Although hopefully the Arkansas story has a happy ending and all the kids have no serious or lasting ill-effects, operators of day care facilities can expose themselves to negligence lawsuits through a staffer's carelessness, even if it was just a simple mistake, as can be argued was the case in Arkansas. Even though substances like windshield wiper fluid and antifreeze are notorious for their bright, refreshing, and/or tasty-looking (antifreeze can actually be tasty) colors that can understandably be confused with kids drinks, a violation of express state licensing regulations could constitute "negligence per se", and leave a facility liable for any resulting damages.

For parents looking into day care or reviewing their existing care, a good idea as far as the subject of safety goes is to check with the operators on the procedures and training at a given facility. Operators and staff should feel comfortable discussing the topic and should also be well-informed about, and/or trained in, areas such as keeping electrical sockets guarded, keeping cleaning and medication supplies out of reach, and fire and health safety procedures. If there is any doubt or discomfort as to any or all of these areas, parents certainly are well-advised to look around for other options.

• AP: 10 drink windshield wiper fluid at Ark. day care
• DaycareState Licensing Requirements (www.daycare.com)
• Methanol Poisoning Overview (www.antizol.com)
• School & Daycare Accidents (provided by Sakkas, Cahn & Weiss, LLP)
• Negligence (FindLaw)