The last thing you ever want to deal with are the repercussions of a defective toy or baby product because they often mean someone has gotten hurt. But, even with recalls, child injuries and even death can happen when a product is made poorly or doesn’t work the way it should.
When this does happen, liability and negligence become two major issues to explore and two reasons why you may be able to take the product manufacturer to court for compensation.
To understand your rights, in the unlikely event your child gets injured or worse because of any product, here’s what you can do.
The stats on product-related injuries and fatalities
According to the Consumer Product Safety Commission, in 2021, there were an estimated 206,400 toy-related injuries in the US. Seventy-four percent were sustained by children 14 and younger, and within that specific demographic, 46 percent of the injuries were to the head and face.
There were, thankfully, only two toy-related deaths to children 12 and younger in 2021, a sizable decrease over the previous year. There were 11 deaths in 2020.
Beyond just toys, many products used by children end up being recalled as a result of injuries and even death. Even everyday items like televisions and heavy pieces of furniture cause serious injury each year by toppling over from having improper anchoring instructions (if any at all).
Looking specifically at infant products, the rock-n-play sleeper and other rocking sleepers were one such item recalled due to infant deaths. Fatalities occurred when unrestrained infants rolled from their back onto their stomach or side. Certain infant strollers have also been recalled due to a faulty hinge. Injuries in that instance got as severe as partially amputating fingers.
In the past, products like drop-side cribs and baby slings underwent recalls due to fatalities from suffocation and asphyxiation. Other injuries also occurred because of faulty designs.
Not all infant products and child toys are a danger though, but to ensure you’re protecting your family, always read through product warnings and instructions for use and stay on top of the news for product recalls.
What makes a product defective?
Often, in a product liability case, the issue is a defective product. There are three types of defects that can lead to injury or death. The type matters in assessing whether or not negligence should be part of your case against the manufacturer.
The three types of product defects are manufacturing, design and an improper warning or complete lack of warning.
- Manufacturing defects occur during the assembly or manufacturing process. They make a product unsafe for its intended use as it’s being created.
- Design defects take the product all the way back to its inception. This means a product is designed incorrectly or it lacks the proper specifications to ensure it’s safe.
- Improper/lack of warning means there’s not an effective warning present with the product to ensure it’s used properly. Warnings are required if something may be hazardous to the consumer.
Is it product liability or negligence?
Even if you can identify the defect, cases where a child is injured by a product can be both product liability and negligence. A product liability lawyer can help you sort out which, if not both, claims you can make.
Product liability occurs when the product itself is defective and/or dangerous in nature. A case like this requires you to prove the product was defective from the start, regardless of how responsible the manufacturer was in producing it.
Negligence comes into play when the manufacturer knowingly produced and sold a substandard product. This is harder to prove in general. When a child gets injured by a product lacking a warning about its use — this is a prime example of negligence.
Regardless of your claim, the legal team on the manufacturer’s side will likely try to debunk your accusations by claiming you didn’t pay attention to existing warning labels, used the product incorrectly or in a different way than it was designed, or made modifications to the product which voided the warranty and liability.
Claims like these may be harder to substantiate. This is one of the reasons why product liability cases get tricky fast, and the help of a confident personal injury or product liability lawyer can make a huge difference.
Taking the first steps in a product liability claim
There are a few important things to remember, when needing to make a product liability claim to ensure you’ve got the proper evidence for your case. Even when working with a knowledgeable product liability lawyer, the manufacturer’s legal team will work very hard to put the blame of your child’s injury or death on your misuse of the product. For that reason, you should always try to:
- Keep the defective product to use as evidence
- Take pictures of the product fail and subsequent injuries
- Keep all documents and medical records related to the injury
- Gather all receipts and documents that show where and when you bought the product
Having the date you purchased the product is always helpful, especially if there’s a recall at any point.
It’s also essential you contact a product liability lawyer in a timely manner. In Georgia, all liability lawsuits must be filled within 10 years of the first sale or use of the product. If you owned the product for a while before it became defective, you may have even less time to get your claim in.
Making a claim after a product recall
You do have a right to ask for compensation for a product-based injury even after a recall. However, these particular cases are often harder to win. The manufacturer may use the recall to claim you already knew about the potential danger and continued to use the product anyway. Situations like these, when you may have to prove you were unaware of the recall, require the knowledge and experience of a product liability lawyer. This is not a battle you should take on alone.
Hiring a product liability lawyer
Lawsuits involving product injury or death are often complicated. It’s hard to know what evidence to gather as well as what compensation to ask for. A product liability lawyer can advise you on all points, including looking at current and future medical expenses for your child, physical and emotional pain and suffering, and punitive damages to calculate compensation.
The legal team at Nicholson, Silverbach & Watson is ready to properly advise you when it comes to both product liability and negligence. They understand what needs to happen when going up against potentially large companies who’d rather cheat you out of what you deserve than admit they were wrong.
Let us focus on your lawsuit so you can focus on healing. Contact us today for a free consultation.