Injuryboard Commentary - Children

Keeping Children Safe

Timothy Smith — Tue, 01 Dec 2009 17:03:58 GMT

I wanted to take a quick moment to bring to my reader's attention a book that is a must read if you are a parent or you are friends with someone who is a parent. "365 Ways to Keep Kids Safe", is a book authored by Attorney Don Keenan who is one of the leading advocates for child safety in the country and an excellent trial attorney as well.

The book can be ordered here: http://www.balloonpress.com/365wayssample.html

An excellent review of the book can be found here.

As a fellow attorney dedicated to raising the public's awareness of safety issues through this particular website, Attorney Keenan is an excellent example of how to educate our friends an families to lead a safer day-to-day existence.

Originally posted at InjuryBoard by Timothy Smith

Children Hurt at Daycare Centers

John Cooper — Mon, 30 Nov 2009 14:22:31 GMT

With more Americans having to have two incomes to make ends meet, more and more people have to put their kids in daycare from early ages. Parents often assume that they are entrusting their child's safety to a responsible and caring adult, but this is sadly not always the case. Stories of children dying from neglect at daycares, or suffering from physical or sexual abuse at the hands of their work day guardians are becoming more and more frequent.

The story of a 22 year-old Virginia woman who is accused of "striking, slapping and sitting on" an 18 month-old baby at the daycare center where she worked is no exception.

According to a local news source:

Ila Howell of Suffolk, who worked at the First Baptist day care center on Main Street, is accused of striking, slapping and sitting on the child who was in the care of the center, said Debbie George, police spokeswoman. The incidents reportedly occurred in the last two weeks of October.

Police issued warrants for Howell's arrest Friday but could not locate her, George said. She turned herself in to police Saturday morning.

Howell faces three counts of misdemeanor simple assault. She was released from Western Tidewater Regional Jail on $1,000 bond.

This is a woman who was hired to be a caregiver to young children. The fact that she exhibited this type of aggressive behavior while on the job is inexcusable. What makes this story worse is that this daycare had already been investigated for inappropriate forms of discipline, but the complaints were thrown out.

We need to know that our children are safe, even when we cannot personally see to their safety. This is the responsibility of daycare owners and employees, and anyone who would shirk such an important responsibility should not be in the daycare business.

Originally posted at InjuryBoard by John Cooper

Public Interest Group Discovers Toys with Lead, Dangerous Chemicals Still on Store Shelves

David Mittleman — Mon, 30 Nov 2009 09:45:19 GMT

As the holiday season approaches many parents will travel to the stores, eager to swoop up the latest toys for their children. Luckily, a new law that bans six dangerous chemicals from children’s toys, as well as lowering the lead limit, will help to keep children safer this year. However, what many parents don’t realize is that a number of toys at major retailers still contain dangerous chemicals and high levels of lead.

According to a recently released report by the U.S. Public Interest Research Group (U.S. PIRG), many manufacturers are complying with the new regulations—but some still aren’t, and it is difficult for consumers to know the difference between safe and unsafe toys. U.S. PIRG sent 15 toys to independent laboratories for testing and found that four of the toys had excessive amounts of lead. Furthermore, two of the toys contained another dangerous chemical known as phthalates, which is widely found in plastic toys and has been linked to reproductive and other health problems. Congress overwhelmingly voted in 2008 to ban phthalates and to significantly reduce the amount of lead in children’s toys in response to the dangerously high levels of lead in toys imported from China during the last several years.

Despite the news that some toy manufacturers are still failing to comply with the new law, the U.S. PIRG stated that they “have seen substantial progress over the last year because of the new law and new leadership at the Consumer Product Safety Commission.” To help protect consumers and help them make wise choices in regards to the toys they purchase for their children, the U.S. PIRG has launched a tool with toy safety tips that parents can access via their cell phones.

Originally posted at InjuryBoard by David Mittleman

Texas Day Care Licensing Needs Reform

M. Brandon Smith — Thu, 19 Nov 2009 21:27:27 GMT

With more and more two-parent households needing both parents to work outside of the home, and more single-parent households being created, the number of young children in daycare is rising. We trust daycare providers to create a safe environment for our children, and to make sure our children are safe when we cannot watch them ourselves.

And while many daycare centers are reliable and staffed by trained professionals, we cannot always guarantee that our children are safe, as a recent incident in Dallas/Fort Worth shows.

On Halloween 2008, A 2-year old girl ingested a rock at the Woodbridge Day School, and choked on it for several minutes before any day care staff noticed that anything was wrong. Due to the delayed reaction in helping the girl, she ended up dying. According to this story by CBS 11 News:

A records check shows the daycare has had two deficiencies in the last two years. One was for not documenting infant feeding instructions. In another incident, a child told a worker he or she was in pain and instead of looking into it, the worker told the child to tell their parent.

Woodbridge was found negligent in allowing the little girl's death to occur.

The fact that the daycare already had deficiencies in its record, and it had not looked into correcting them is troubling. What is even more troubling is the fact that, under a Texas daycare law loophole, if the current owner of Woodbridge wanted to sell his establishment to a new owner, then all of the previous owner's regulatory violations and deficiencies would be wiped from the Texas Department of Family and Protective Services' website, without necessarily having to replace a single employee, even if those employees lacked the proper qualifications or training.

This law is dangerous, and can make it very difficult for working parents to find a genuinely safe daycare center to place their children. We need to work to hold lawmakers and daycare owners accountable for their actions, so that loopholes like these don't end up costing more children their lives.

Originally posted at InjuryBoard by M. Brandon Smith

Maclaren Stroller Recall: What A Parent Should Do

Steven Schafer — Tue, 17 Nov 2009 00:01:00 GMT

On November 9, 2009, Maclaren USA, the American subsidiary of the British manufacturer of umbrella strollers and other children’s products, “voluntarily” recalled about 1 million strollers because of fingertip lacerations and amputations. According to the Consumer Product Safety Commission, “The stroller’s hinge mechanism poses a fingertip amputation and laceration hazard to the child when the consumer is unfolding [or] opening the stroller.”

Two earlier articles focused on the supposed “voluntary” aspect of the recall and a manufacturer’s responsibility to identify and eliminate design defects so that injuries like these don’t happen. This article speaks to what a parent who owns a recalled stroller should do.

Parents and caretakers should be skeptical about the “voluntary” nature of this recall and the accuracy of the numbers cited – Maclaren says it received 15 reports of children placing their finger in the stroller’s hinge mechanism, resulting in 12 reports of fingertip amputations in the United States.

Parents and caretakers should also be skeptical of Maclaren’s free repair kit, which appears to consist of cloth hinge covers that snap onto the frame. Covers that easily snap in place can also be easily removed, yet the unsafe pinch points remain. From a design standpoint, a guard or cover that can be easily removed without disabling the product is inadequate. One must be concerned that the next family who inherits the stroller may be unaware of the covers’ importance and may remove them for any number of reasons. Covers may be removed once they get dirty and may not be replaced. (Doesn’t Maclaren realize that peanut butter and jelly and many other substances are inherent to this product’s expected environment of use?)

If you have a recalled Maclaren stroller:

And, after careful consideration, you want to continue to use the stroller, then you should request the hinge covers from Maclaren and only use the stroller when the hinge covers are in place;
And you are not wedded to the stroller, then you do not have to settle for the hinge covers. You should write to Maclaren – emails are good; snail mail sent certified, return receipt requested, is better; both methods are best – and request a refund. If they insist on your returning the stroller first, go ahead and do that, but request that they pay the shipping costs. Maclaren can be contacted at www.maclaren.us/recall.

If you have a recalled Maclaren stroller, and you have seen your child place a finger in the hinge mechanism:

You should report this to Maclaren and either request the hinge covers or a refund (see above);
You should also report this to the Consumer Product Safety Commission. The CPSC Recall Hotline is 800-838-2772. The CPSC website is https://www.cpsc.gov/cgibin/incident.aspx.

If you have a recalled Maclaren stroller, and your child has suffered a lacerated or amputated finger or other injury from the hinge mechanism:

Do not use the stroller, with or without hinge covers;
Do not throw the stroller away, but store it in a safe, clean place;
You or an attorney should write to Maclaren and report the injury (see above);
You or an attorney should report the injury to the Consumer Product Safety Commission (see above);
You are entitled to reimbursement for your child’s medical bills (past and future) and your son or daughter is entitled to compensation for pain and suffering and disfigurement, including corrective surgery if available and indicated.

No consumer who has been injured by an unsafe product need apologize for exercising his or her legal rights. Despite the protestations of manufacturers and the insurance industry, product liability claims in the United States have led to safer roads, workplaces, schools, and homes. To illustrate, double hand controls on industrial machines prevent an operator’s hands from getting in the way of moving parts. Automobiles are now more crashworthy because of stronger structural components, padded dashboards, airbags, safety glass, seatbelts and crush zones. And children’s toys don't have small parts that can be swallowed or lead paint that can be ingested. Product liability claims pressed by consumers and their attorneys have led to these improvements.

Originally posted at InjuryBoard by Steven Schafer

Theft and Joyriding Lead to Pursuit and Death in Oak Park, MI

Devon Glass — Mon, 16 Nov 2009 14:30:27 GMT

15-year-old Desean Murrell Fant died after crashing a stolen car into a tree in the early morning hours of November 10, 2009 in Oak Park, MI. Desean and another 15-year-old child had allegedly stolen a 1999 Saturn that belonged to a 24-year-old Oak Park resident.

After locating the vehicle, Oak Park police ensued on a car chase. The boys were not wearing seat belts when they lost control of the vehicle. The police had been pursuing the boys for several blocks and Michigan State Police are reconstructing the crash to learn more about the boys' speed at the time of collision.

Local residents noted that the speeding car was zooming. It is unfortunate and tragic that the need to go on a joyride or steal property would lead to taking such dangerous risks. The risks were not only to their own lives, but to the lives of any other pedestrian or driver.

It is also unfortunate that death is the price that was paid by these kids for stealing a car. If these kids had been caught and arrested, I don't think anyone would find death a reasonable punishment for the crime they committed, but that's the sentence they received when the situation escalated. Did the police really need to engage in a high speed pursuit to catch these kids for stealing a car?

Originally posted at InjuryBoard by Devon Glass

Maclaren Stroller Recall: Free Repair Kit Costs More Than Its Worth

Steven Schafer — Mon, 16 Nov 2009 00:01:00 GMT

Maclaren says it received 15 reports of children placing their finger in the stroller’s hinge mechanism, resulting in 12 reports of fingertip amputations in the United States.

My last article focused on the purported “voluntary” aspect of the recall and questioned how Maclaren was gathering and maintaining reports of accidents and near-accidents. This article will focus on the manufacturer’s responsibility to identify and eliminate design defects so that injuries like these don’t happen. My next article will speak to what a parent who owns a recalled stroller should do.

Manufacturer’s Legal Duty. Under the law, a manufacturer is responsible for acting reasonably - or exercising "due care" - in designing, manufacturing and testing a product to make sure that the product is fit for a particular purpose. If there is an unsafe aspect to the product that results in injuries to the person using it, or someone close by, the manufacturer can be held responsible for the injuries on the basis of negligence, or for having breached express and implied warranties about a product’s fitness. A manufacturer must anticipate the environment in which its product will be used, taking into account the sophistication and knowledge of the operator or consumer, the location where a product will be used, and the foreseeable uses and even misuses to which the product may be placed. The manufacturer must design against reasonably foreseeable risks of injury in this context.

So, in the case of a children’s stroller, a manufacturer must anticipate that a child may place his or her hand or fingers on the stroller’s frame when a parent or caregiver is opening or closing the stroller. Just think of the mother with two or three children in tow, who is setting up or collapsing a stroller next to the family car in the parking lot at the mall. She has children to watch, bundles to handle, and traffic to look out for, all while she is opening and closing the stroller. There should be no possibility that the stroller’s hinge mechanism will allow a toddler’s finger to get in the way. Mom, dad, grandma or the babysitter cannot be held to the level of expertise of the design engineer and should not have to inspect the stroller to make sure that there are no areas where the child’s hands or fingers can be caught or pinched. We protect industrial workers by eliminating or covering exposed gears and moving parts on machinery; a stroller should be designed with no less concern for safety.

Manufacturer’s Design Responsibilities. Hazard and risk analysis has become a staple of mechanical engineering. When studying safety engineering, students learn the so-called "safety hierarchy" of design, which is intended to identify, and then eliminate or reduce the risk of injury from a hazard posed by a product.

The design engineer must identify hazards (such as a pinch point, where parts of a product can catch a part of the body and cause injury) and evaluate the chances of an injury occurring, and the severity of the injury.

Once a risk of injury has been identified, the design engineer should try to eliminate the risk entirely, by reconfiguring that part of the product. When it comes to a hinge mechanism into which little fingers can fit, perhaps the space is made larger so that fingers cannot be pinched when the hinge is opened and closed. Or, perhaps the space is made smaller so that a finger cannot possibly fit into the space.

If the risk of injury cannot be eliminated by a change in design, then the engineer should try to guard against the risk. A permanent, non-removable hinge cover might work in this instance.

If the risk of injury cannot be eliminated by a design change, or guarded against by a cover, then the designer may resort to warnings or instructions. There is a science to proper warnings and instructions. They must first alert the user with attention getting words that are commensurate to the hazard (such as DANGER in yellow against a black background, or WARNING in red and white, or CAUTION in orange and black). A proper warning should then alert the user to the hazard (such as "In-Running Rollers" or "Sharp Blade"). A proper warning should tell the user what to do or what not to do (like "Keep Hands Away from Opening") to avoid the hazard. And finally, a proper warning should tell the user the consequences if he or she disregards the warning (for example, "Placing Hands in Vicinity of In-Running Rollers May Result in Amputation or Other Serious Injury").

Legalistic warnings and instructions may give the manufacturer an argument in court, but do little to communicate to the consumer the information he or she needs to use a product safely. Warnings like “Be Careful” do not communicate necessary information.

While a manufacturer might argue that warnings and instructions are unnecessary and that the hazard is obvious or a matter of common sense, a proper warning (when the hazard cannot be eliminated by a design change or when a guard or cover will not work) might say:

WARNING

AMPUTATION POINT! OPENING IN HINGE MECHANISM MAY ACCOMMODATE A CHILD’S FINGERS

KEEP YOUR CHILD’S HANDS AND FINGERS OFF FRAME AND AWAY FROM HINGE MECHANISM WHEN OPENING AND CLOSING STROLLER

YOUR CHILD’S FINGERS MAY BE AMPUTATED OR SEVERELY CUT IF THEY ARE IN THE HINGE MECHANISM WHEN STROLLER IS OPENED OR CLOSED

Even the best warnings and instructions, however, don’t take the place of good design that eliminates the hazard and risk of injury altogether, and they don't substitute for a guard when the good design cannot eliminate the hazard and risk of injury.

Maclaren has chosen to guard against the risk of injury by offering a "free repair kit," consisting of hinge covers for the pinch points where a child's finger can be cut or amputated. The hinge covers appear to be made of cloth and snap onto the frame. A cover that easily snaps in place can also be easily removed, yet the unsafe pinch point remains. From a design standpoint, a guard or cover that can be easily removed without disabling the product, is inadequate. One must be concerned for the next family that inherits the stroller and who may be unaware of the covers’ importance, or that the covers will be removed once they get dirty. (Doesn’t Maclaren realize that peanut butter and jelly and many other substances are inherent to this product’s expected environment of use?)

The "free repair kit" might be worth just what Maclaren is charging for it, and a lot less than the $2 per stroller that Maclaren is reportedly spending on the kit.

What should a parent do?

Originally posted at InjuryBoard by Steven Schafer

Maclaren's "Voluntary" Recall of Strollers May Not Be So Voluntary

Steven Schafer — Sun, 15 Nov 2009 14:26:50 GMT

On November 9, 2009, Maclaren USA, the American subsidiary of the British manufacturer of umbrella strollers and other children’s products, “voluntarily” recalled about 1 million strollers because of reports of children suffering fingertip lacerations and amputations. According to the Consumer Product Safety Commission, “The stroller’s hinge mechanism poses a fingertip amputation and laceration hazard to the child when the consumer is unfolding [or] opening the stroller.”

This article will focus on the “voluntary” aspect of the recall. Future articles will focus on the manufacturer’s responsibility to identify and eliminate design defects so that injuries like these don’t happen, and what a parent who owns a recalled stroller should do.

Maclaren says it received 15 reports of children placing their finger in the stroller’s hinge mechanism, resulting in 12 reports of fingertip amputations in the United States.

This recall is about as voluntary as Bernard Madoff’s plea bargain, and Maclaren’s press release about as sincere as Madoff’s confession. The Consumer Product Safety Act requires a manufacturer to report consumer complaints to the CPSC where the manufacturer has notice that one of its products contains a defect that amounts to a substantial product hazard or poses an unreasonable risk of serious injury or death.

The CPSC can order a manufacturer to notify its customers and the public and to recall the product, and it can impose hefty fines if a manufacturer has withheld information, not acted quickly enough in reporting its knowledge to the CPSC, or otherwise placed the public at risk. Faced with an imminent government order, a manufacturer often decides that it’s better to cooperate with the CPSC, “voluntarily” recall a product, and offer a repair kit to consumers, than wait for the CPSC to impose harsher action. By cooperating in a “voluntary” recall, a manufacturer can spin its explanation to avert a public relations disaster and can negotiate fines.

Many consumers expressed dismay that 12 children suffered partial finger amputations before Maclaren did anything to prevent more injuries. What hasn’t yet been answered, however, is when Maclaren first learned of a child with a partial finger amputation, or first learned that a child was almost injured (making an actual injury all the more foreseeable), and how long it took the company to report the product defect to the CPSC. We also don’t know how Maclaren obtains and maintains its information on injuries.

Maclaren’s press release reaffirmed the company’s “unwavering commitment to child safety.” One would think a safety conscious manufacturer would want to provide equal protection to children in other countries, yet until consumer outrage sunk in, Maclaren initially was making the repair kits available only for U.S. consumers. The CPSC’s authority does not extend overseas, so Maclaren’s sense of voluntariness didn’t initially extend to countries that lack the United States regulatory protections, even though the strollers sold elsewhere are identical to those sold here. Maclaren says that it has received fewer reports of such injuries in the UK. Could it be that British tikes are themselves more safety conscious? Or, perhaps their fingers are less valuable than those of American children.

From product liability cases we have handled, this writer knows that it is not unusual for manufacturers to set up elaborate mechanisms to avoid learning or disclosing information about product injuries. When injuries do come to the attention of product manufacturers, many record the information in language that emphasizes consumer error in operating the product, not design defects that should have been identified and eliminated by the manufacturer. Sometimes injuries are assigned innocuous injury classifications to mask what really happened.

In the case of one children’s product made by another company, we found that the manufacturer instructed its customer service representatives who fielded consumer telephone calls not to ask if anyone was injured when a product failed. If a parent or caregiver reported an injury, the person was immediately transferred to another department that recorded basic information, but didn’t ask questions to clarify the severity of injuries or how they happened. The consumer wasn’t told that hundreds of other customers experienced the same problem. Reports were toned down to make the events seem innocuous and emphasis was placed on the parent or caregiver not properly operating the product, not on the inherent defect in the product’s design. Then, reports were not passed on to the regulatory people who were responsible for reporting the injuries to the CPSC. Years went by before the company reported the injuries to the CPSC.

This writer has learned of one little girl who suffered a partial index finger amputation long before Maclaren announced the “voluntary” recall. The child’s mother spoke to a customer service representative at Maclaren, but never received a response from the company. It’s doubtful that her complaint was included in the fifteen reports acknowledged by Maclaren.

So, we are left asking, what did Maclaren know and when did the company know it?

Originally posted at InjuryBoard by Steven Schafer

Maclaren Recalls Over a Million Strollers after 12 Children Were Injured(2)

John Cooper — Sat, 14 Nov 2009 15:24:17 GMT

Parents put a lot of faith into trusted brands like Maclaren USA, a brand long known for its popular strollers. They often spend a little more than they would on themselves, do a little more research than normal, and go with the brand they feel will be the safest for their child. Sometimes that trust is violated and those products thought to be safe end up causing severe injuries to children.

Such is the case with Maclaren USA. The U.S. Consumer Product Safety Commission issued a recall on over a million strollers made by Maclaren after the company reported at least 15 injures to children and infants. 12 of those injuries resulted in the child’s fingers being amputated, 3 resulted in severe lacerations to the child’s hands, and even more injury reports are expected to come in. The problem started with a faulty hinge. The hinge allows the stroller to compact down for easy storage. When the stroller is in the upright position children can get their fingers caught inside the hinge, if the hinge collapses the child risks amputation or severe injury.

The effected models include; Volo, Triumph, Quest Sport, Quest Mod, Techno XT, TechnoXLR, Twin Triumph, Twin Techno and Easy Traveller. Maclaren has sold over one million of these stroller brands. As part of the recall, Maclaren is offering a free hinge cover that can be installed at home. The cover is available though their website, or by calling their toll free number; (877) 688-2326. The Consumer Product Safety Commission is urging any parent who owns one of these stroller models to discontinue use immediately until the part can be ordered and installed.

It is uncertain at this time how long Maclaren USA was aware of this problem before the recall was issued. As there were over a dozen injuries already reported one can assume the stroller hinge had been faulty for a long time, possibly even years. If your child was injured while in a Maclaren stroller a personal injury attorney may be able to assist you in seeking damages. If you own a model of stroller listed in the recall we urge you to discontinue use immediately, even if your child has not yet been injured by the hinge.

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono service to consumers.

Originally posted at InjuryBoard by John Cooper

Go-Carting Safety and Riding on the Public Streets

Steve Lombardi — Fri, 13 Nov 2009 10:25:00 GMT

On September 04^th 2009 14-year-old William Beaulieau and a class mate 15-year-old Jacob Murray were go-carting when the go-cart they were riding in collided with a Ford truck driven by Chad Stange. The accident occurred at the intersection of 300^th Street and Stanley Road near Fredericksburg at about 5 p.m. Mr. Beaulieau was driving the go cart and both boys were ejected on impact and both died as a result of the injuries sustained in the crash.

First of all the report isn't clear but appears to say they were driving the go-cart on the public’s right-of-way; the road or street. If so, our first thought is to ask what are they doing riding on the street? And why at 5:00 p.m. when commuter traffic is likely to be increased due to people coming home from work? No license, no registration, no tags and no reason to be there. Was there a moped type flag on the go-cart? Go-carts are too low to be seen by normal drivers, so it's an accident waiting to happen.

The next question that always comes up is about supervision. Where were the adults who should be supervising them and why did they think it permissible to be driving a motorized go-cart on the public streets? What were they taught about riding it on the streets? Was someone home watching Oprah when they should have watching the kids? These are the types of questions that would need to be answered.

I've got experience with this in my neighborhood. I see my neighbor's children and adult children running an unlicensed ATV on the streets while trying to pull wheelies. When I see them out there my first thoughts are when the accident is going happen; you know the one that is inevitable. You see I live on a corner and I know my neighbors driving habits; probably too well. Here is my one neighbor who is also a lawyer and he drives way too fast through that intersection and now we are adding kids and young adults on an unlicensed vehicle. And then there are the neighborhood teen drivers going through that intersection as if they owned it. I’m shaking my head as I ponder the sound of metal to metal as the crash unfolds in my head; that's what happens to aging personal injury lawyers; we dream of all the crashes we've had cases about. Maybe I should move to the end of the cul-de-sac; then I wouldn’t know so much about the intersection down by Lombardi’s house.

These situations lead to tough questions with very unsatisfying answers.

If you’ll recall we’ve discussed a similar type of accident involving an ATV running into a parked car.

But it also raises another question. What was the driver of the Ford truck doing? How fast was he going? Did he have any distractions that took away from his awareness as a driver on the public roads? His actions may not excuse his negligence. Was he aware from previous occasions that this kid would be out riding his go-cart in the street? If so, was he watching out for him? Did he know the kid was there and just ignored him? Determining negligence is such a multi-faceted task with many questions about the behavior of each actor that need to be answered about whether it lived up to the reasonable man standard. In this case it’s probably too easy to just want to blame the kids on the go-cart; but our first inclinations aren’t always the fairest either.

So let’s wait till we know all the facts before judging and coming to a conclusion.

We wish the families well and I rest my case.

Originally posted at InjuryBoard by Steve Lombardi