Whether your child has received a flurry of new toys for the holidays, or you are just picking up a few new toys from a local garage sale – buyer beware. There are several instances where toys marketed for children (including infants) have tested positive for chemicals and other toxins that are harmful to young ones.
Contrary to popular belief, just because a toy is on the shelves of your favorite toy store and marketed for your child does not mean it is safe. It also does not say that the retailer has ensured it is safe. Sometimes, a toy is a hazard without even having harmful toxins – for example, if the toy is a strangulation hazard.
Regardless, manufacturers are required to produce toys that are safe, and they must be aware of any foreseeable harm before releasing their product. When manufacturers fail to do so, they could be held liable under product liability law.
In 2012, the United States Consumer Product Safety Commission (CPSC) reported 11 deaths related to toys, and there were 265,000 injuries associated with toys. Most of these toy-related fatalities involved drowning or suffocation, while the injuries involved lacerations or bruises.
Accidents like these are tragic, and children should be able to play with their toys safely. At the same time, parents should be able to purchase toys confidently, and not worry if that toy is a toxic or safety hazard for their child.
Some of the common hazards associated with these injury-prone toys include:
Several outlook agencies have found toxins and harmful chemicals in children’s toys, but there has been limited government intervention with these toys.
Some of the chemicals found in children’s toys have been associated with cancer, fertility problems, thyroid malfunctions, development delays and complications, and brain damage. Some have led to lower IQs in young children. In some studies, toxins found in children’s toys include:
Most toys on the toy store shelves are safe; therefore, parents should by no means assume that all toys pose a risk to their child. However, there is a high number of children who are injured each year because of toys, and these are only the numbers that the government gathers from reports. There are likely to be hundreds more since not all injuries are reported or seen at emergency rooms.
The most common injuries reported with toys include:
Some of these injuries occur because children are not supervised properly, or they are given a toy that is inappropriate for their age – such as letting a toddler play with small building block toys. Other times, the injuries occur because parents fail to follow manufacturer instructions.
There are also serious injuries associated with toys that are defective or inherently dangerous, and manufacturers failed to test these toys properly to assess their risk to children. Some manufacturers, to save money and lower the cost of their products, have switched to overseas manufacturing plants or purchasing discount materials that contain high levels of toxic chemicals. Also, when toys are produced or assembled in a third-world country that does not have the same quality standards, the toy could be dangerous.
Toy injuries due to defective toys fall under the theory of product liability. In a product liability claim, the plaintiff alleges that the toy was defectively designed or manufactured, or did not contain the proper warning labels to indicate there was a risk or hazard to children using that toy.
Regardless of how the child’s injuries were caused, the basis for the claim will fall on the negligence of the manufacturer, designer, assembly company, distributor, or retail store that sold the defective product.
For a product liability claim to be successful, there are certain elements that your attorney must prove to the court, including:
It is not enough that a child suffers an injury. Instead, your child’s injuries must be severe enough to result in damages.
There is an exception to the legal burden on the plaintiff for product liability claims. This approach is known as strict liability. Under strict liability, you do not have to prove negligence. Instead, you only must prove that there was a defect and the defect caused your child’s injuries.
Showing a toy’s hazards can be obvious, while other times your attorney must hire experts to prove to the court that the toy is dangerous – even when used properly. If the court feels that the design of the product is clearly hazardous, then you will not have to spend much time proving that it was hazardous.
An example would be lead poisoning from toys. Say a child had a set of miniature toys and had played with those toys for several weeks. The cars were metal and painted in different colors. After a few weeks, the child began showing symptoms of irritability, nausea, and vomiting. After being assessed at the hospital, it was revealed that the child had severe lead poisoning.
It turns out that the toys the child had been playing with used a lead-based paint. By putting the cars in the mouth, the child ingested lead without knowing so. In this case, the parents could sue the manufacturer on strict liability. It was clear that the cars were dangerous, because they contained lead paint, a known toxin. This danger is indefensible by the manufacturer; therefore, the court would likely agree that strict liability applies.
Often, product liability cases become more complex because there are typically multiple defendants that may be listed in the lawsuit. For example, the retail store that sold the defective toy could be held liable. After all, retailers are also required to do everything possible to ensure the products they sell and market for children are safe.
Retailers should conduct research on manufacturers before accepting their products for their stores. If they do not research the products they are selling, they too are negligent.
Another party may be the company responsible for assembling the toy. While the manufacturer could be a United States-based company, their subsidiary could be in another state or country and is responsible for assembling. While the manufacturer would take the brunt of the blame for not overseeing the assembly plant’s quality, the assembly plant could also be held liable in the lawsuit.
An attorney’s role in a product liability claim is very complex, but with the assistance of an attorney you are more likely to receive compensation and have a successful outcome. When your child suffers serious injuries because of a toy’s defect, it is imperative that you contact an attorney as soon as possible.
Just some of the items your attorney can assist you with include:
If your child was injured by a defective product, contact the attorneys at Malman Law today. Our team is here to represent your rights and hold manufacturers responsible for their negligence. Schedule a consultation today with our attorneys by calling us or requesting your appointment online.