Articles Posted in Injuries to Minors

Earlier this month, one state’s supreme court issued a written opinion summarily affirming a lower court’s decision that the contract the defendant trampoline park required patrons to sign was a contract of adhesion and thus unenforceable. As a result of the court’s decision, the plaintiffs will be permitted to continue with their case in a court of law, rather than proceed through arbitration.

TrampolineAlicea v. Activelaf:  The Facts

The Aliceas arranged to take their two young sons to a trampoline park owned by the defendant. Prior to being admitted into the park, Mrs. Alicea was required to electronically sign a “Participant Agreement, Release and Assumption of Risk” form. The form contained what claimed to be a binding arbitration clause, whereby anyone who signed the form would be prohibited from filing a case in a court of law against the trampoline park. Instead, the dispute would be resolved through an arbitration company. The form also included a clause stating that any person who did file a lawsuit against the trampoline park agreed to pay the park a $5,000 fee plus interest.

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Earlier last month, a Washington Post article was released, summarizing the data that researchers had accrued regarding the safety of daycare facilities in the Commonwealth of Virginia and the safety of the facilities as a whole. The results were terrifying, showing that 60 young children have died while in the care of daycare providers in the last 10 years alone.

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According to the report, the lack of regulation surrounding home-daycare facilities is at least partially to blame for the high number of deaths. In fact, approximately 43 of the 60 deaths over the past 10 years occurred at these virtually unregulated daycare facilities. Home-daycare facilities are not regulated by the Department of Social Services’ licensing division, which oversees all licensed facilities.

This means that the Department is not able to look into the kind or level of care that is being provided until there has been a complaint filed. Of course, at this point it is often too late to do anything. Virginia is one of only a few states that does not regulate home-daycare providers.

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Lexus_Navigation_advanced_parking_system.jpgThe National Highway Traffic Safety Administration (NHTSA) recently issued a new regulation that will require all vehicles under 10,000 pounds to have backup cameras by 2018. A lack of rear visibility causes a substantial number of pedestrian injuries and deaths every year. Children face a greater risk, simply because they tend to be smaller and therefore more difficult for a driver to see if they are directly behind a vehicle. A law passed by Congress in 2007 directed the NHTSA to develop regulations by 2011, but multiple delays have occurred since then. A lawsuit filed in September 2013 sought a court order directing the government to issue the rule mandated by the 2007 law.

The NHTSA reports that backover accidents, in which a vehicle strikes a person or another vehicle while driving in reverse, cause around 15,000 injuries and 210 deaths every year. Thirty-one percent of the deaths caused by backover accidents are children under the age of five, and twenty-six percent are adults age seventy and older. The new regulation, which will be added to Part 571 of Title 49 of the Code of Federal Regulations, will require the installation of backup cameras in new vehicles beginning on May 1, 2016, with full compliance expected by May 1, 2018. Cameras must be able to display a 10-foot by 20-foot area behind the vehicle. The NTHSA estimates a maximum cost of $45 per vehicle to install a camera, or $142 to install a full system. It states that the regulation, once fully implemented, will save fifty-eight to sixty-nine lives per year.

Congress directed the NHTSA to make a rule requiring backup cameras in the Cameron Gulbransen Kids and Cars Safety Act of 2007. The bill was named for a two-year-old child who died when his father, unable to see him in the rearview or sideview mirrors of his SUV, accidentally backed over him in 2002. The bill gave the NHTSA eighteen months to issue a preliminary regulation, with a determination on a final rule required within thirty months of the bill’s enactment. The NTHSA’s final deadline was in February 2011, but it kept delaying a final determination. In its press release announcing the rule on March 31, 2014, the NHTSA stated that it delayed issuance “to ensure that the policy was right and make the rule flexible and achievable.”

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IMG_8031.jpgThe family of a child who died of an infection possibly contracted from a rat bite has filed a lawsuit against the pet store that sold them the rat. The medical examiner ruled the cause of death to be a bacterial infection sometimes known as “rat-bite fever.” The lawsuit alleges general negligence, claiming that the pet store, part of the national chain Petco, failed to warn of the dangers associated with owning a rat as a pet. The plaintiffs are seeking both compensatory and punitive damages.

The ten year-old boy, who lived in San Diego, California, reportedly purchased the rat from a Petco store with his grandmother on May 27, 2013. He began experiencing severe pain at around midnight on June 11, including a fever and stomach pain. Paramedics took him to the hospital, but he died about an hour later. After conducting an autopsy, the medical examiner determined that he died of streptobacillus monliformis infection, or rat-bite fever.

According to the Centers for Disease Control and Prevention (CDC), people can contract this infection from infected rodents via a bite or scratch, or by ingesting food or water contaminated with the bacteria. Common symptoms include fever, chills, and joint pain or stiffness. The infection can be serious and even fatal, with a mortality rate of ten percent, if left untreated. A significant risk of delayed diagnosis exists because the initial symptoms are often nonspecific and the bacterium itself is reportedly difficult to culture. As rats become more popular as pets, some clinicians have expressed concern about increased risk of exposure.

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Washington_DC_view1.jpgThe U.S. District Court for the District of Columbia partly granted and partly denied a motion to dismiss brought by the defendant in a lawsuit alleging failure to supervise a group home resident. Colbert, et al v. District of Columbia, et al, No. 1:13-cv-00531, opinion (D.D.C., Dec. 13, 2013). The plaintiff sued the District of Columbia and a private contractor operating a group home, asserting various tort claims and a constitutional claim after her daughter, a developmentally disabled woman, became pregnant while in the custody of the District. The court declined to dismiss the suit outright, but it dismissed the constitutional claim without prejudice, giving the plaintiff an opportunity to amend her complaint. If the court dismisses that claim with prejudice, it may lose subject matter jurisdiction over the remaining claims based on DC law.

The plaintiff’s daughter, identified in the court’s opinion as KC, was hospitalized at the District’s request in the fall of 2008. A psychological assessment determined that KC needed 24/7 care and supervision, so she went to live at a group home operated by a contractor, Total Care Services, Inc. According to the plaintiff, KC had a history of sexual abuse and neglect, a history of failing to take her medication consistently, and mental impairment.

Total Care and the District were aware of KC’s history and how it affected her condition, the plaintiff claims, but they allegedly allowed her to have unprotected and nonconsensual sex with multiple individuals. The plaintiff does not appear to claim that any employee of either Defendant participated in sexual activity with KC. KC became pregnant and gave birth to a girl named TC, who was born prematurely in April 2011. The plaintiff was awarded sole custody of TC, but she was born with significant health problems and required frequent surgeries and hospitalization. TC died nine days after her first birthday.

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The Court of Appeals of Maryland, Maryland’s Highest Court, recently handed down a landmark decision in the field of liability waivers and negligence lawsuits concerning injured minors.play_structure.jpg

The case, BJ’S WHOLESALE CLUB, INC. v. Rosen, Md. Ct. App. (2013), dealt with a scenario every parent dreads. In the case, plaintiff had signed a consent form/liability waiver, waiving any potential future negligence claims and indemnifying the store, on behalf of his minor children, which allowed them to play in the free supervised area of a BJ’s store, while their parents shopped.

Some 15 months after the waiver was initially signed, plaintiff’s five year old son fell off of a play structure animal, and hit his head on the floor, which was concrete covered with a thin layer of carpeting. As a result, he suffered a head injury, which ultimately required a craniectomy for evacuation of the epidural hematoma that developed.

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multiple%20choice.jpgLikely in reaction to the increased awareness surrounding the dangers of concussions and head injuries, for the first time, Maryland public schools will begin to conduct cognitive testing for all high school athletes in Montgomery County before the students can practice or play on any sports team.

The computer based tests, called ImPACT, measure memory of both written words and patterns, in addition to other data, to create a baseline assessment. Then, if a player suffers a concussion during the season, a follow-up test can be given for comparison three to seven days after the injury. The retests are given once the injured individual is recovering, in order to ensure that they are capable of returning to play.

Additionally, some local football coaches are training athletes in the USA Football’s “Heads Up” program, which teaches tackling techniques that protect against head and neck injuries. Furthermore, players will only engage in hitting during two practices a week, aside from game day, in order to decrease the potential number of sub-concussive hits.

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According to a recent report by product safety advocacy organization Kids In Danger (KID), the frequency with which children’s products were recalled in 2012 does not correlate with the increased number of injuries and deaths cause by products in the same year.

While only 97 children’s products were recalled in 2012, which is coincidentally the lowest number since 2004, when compared with 2011, the occurrence of incidents related to defective children’s products was as follows:

  • Overall incidents were up 49%
  • Injuries were up 42%
  • Deaths increased 200%
  • The number of children’s products recalled dropped by 20%

In fact, according to the KID report, most parents reported hearing of product recalls around once or twice a month, even though in 2012 a children’s product was recalled every three and a half days on average.

In addition to the new data above, the study put forth two main conclusions regarding the safety of children’s products. First, many of the well established standards, such as those relating to flammability, drawstrings, or small parts to name a few, continue to be commonly violated. For example, children’s clothing must have the drawstrings anchored in place to avoid posing a strangulation risk, and several recalled products during 2012 were recalled for failing to meet that rule. According to the study, 22 products were recalled for failing to meet these and other standards.

Secondly, many products that are intended to be used by infants and small children are not subject to any formal safety standards. These include things like travel beds and crib tents. These kinds of products were associated with several deaths in 2012.

It is important for the consumer to note that products are not usually recalled following a single incident. Unfortunately, it may take many injuries and in some cases deaths before the manufacturer will decide to voluntarily recall the product, or until the Consumer Product Safety Commission requires it to do so. Therefore, it is important to seek out reviews of children’s products, and be sure to check governmental and company websites for updated information regarding potential recalls.

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113679_6300.jpgA wrongful death lawsuit arising from a Nebraska automobile accident invokes that state’s fetal death statute, reportedly for the first time since the Nebraska Legislature enacted it in 2003. The plaintiffs in Baumann v. Slezak, et al are asserting multiple causes of action in relation to the deaths of a Maryland couple, their two children, and their unborn child. The unborn child was a viable fetus at the time, which is an important distinction in some jurisdictions. The right to recover damages for the wrongful death of a person requires that the law recognize the decedent as a “person.” Nebraska’s statute explicitly applies to unborn children “at any stage of gestation,” while the District of Columbia’s statute does not mention unborn children or fetuses. Case law from DC, however has established that the law may apply to a “viable” fetus.

The accident in Nebraska occurred during the early morning of September 9, 2012. A family of four, consisting of a father, a pregnant mother, and two children, were driving through western Nebraska on their way to California. Each parent was driving a separate vehicle, and the children were riding with the mother. Traffic on westbound Interstate 80 was at a standstill because of an accident between two semi-trailers about one mile further up the road. While the family’s two cars were stopped, one behind the other, at the rear of the line of traffic, another semi-trailer approached from behind at about seventy-five miles per hour. The driver allegedly did not slow before colliding with the father’s car. This caused his car to collide with the mother’s car, propelling it under the trailer in front of her, and killing the four family members and the unborn child.

The legal representatives of the two parents filed suit on behalf of the parents, the children, and the unborn child, asserting causes of action for negligence and violations of federal trucking safety regulations. They sued the truck driver, his employer, and the driver and truck companies allegedly responsible for the accident that caused the traffic jam, asserting causes of action for negligence and violations of federal safety regulations.

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320px-ChildWearingHoodie.jpgThe U.S. Consumer Product Safety Commission (CPSC) announced that the retailer Burlington Coat Factory (BCF) has agreed to pay $1.5 million in civil penalties for violating regulations affecting children’s upper outerwear, such as jackets and sweaters. The CPSC regulates, and largely prohibits, the sale of children’s outerwear with drawstrings. This is due to the high risk of serious injury or death when drawstrings have caught on other items. The penalty to BCF is reportedly the largest one ever assessed by the CPSC for this particular regulation.

The CPSC issued its first set of guidelines regarding drawstrings on children’s upper and lower outerwear in 1996, which it included in a set of voluntary standards the following year. According to the CPSC, since the voluntary standards took effect, the number of deaths caused by children’s upper outerwear drawstrings has declined by seventy-five percent, and it has not received reports of any deaths from waist-level drawstrings.

The primary risk of upper outerwear drawstrings comes when a drawstring is caught on another object. The CPSC states that it has received twenty-six reports of cases where children were killed after a drawstring became tangled in an object. These included school bus doors and playground slides, among others. Drawstrings around the neck present a risk of strangulation, and waist drawstrings have resulted in children being dragged by vehicles when they are caught in doors. In the six-month period from November 2011 to May 2012, the CPSC says it issued eight recalls of products involving drawstring hazards. It has recalled a total of 130 drawstring products.

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