Injuries to Minors

Maryland High Court Sides Against Parents, Upholds Liability Waiver, in Case involving 5 Year Old Seriously Injured in Store’s Play Area

December 3, 2013 | Lebowitz & Mzhen

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.

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.

Maryland Public Schools to Conduct Baseline Assessments Aimed at Concussion Identification

August 28, 2013 | Lebowitz & Mzhen

Likely 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.

Despite Fewer Recalls, Defective Children’s Products Cause Increased Number of Injuries and Deaths in 2012

April 23, 2013 | Lebowitz & Mzhen

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.

Statutes Allowing Fetal Wrongful Death Lawsuits Vary from State to State: Baumann et al v. Slezak et al

November 23, 2012 | Lebowitz & Mzhen

A 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.

CPSC Imposes $1.5 Million Fine on Retailer Selling Children’s Clothing with Drawstrings

August 23, 2012 | Lebowitz & Mzhen

The 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.

New National Safety Standards Issued for Children’s Play Yards

July 5, 2012 | Lebowitz & Mzhen

New safety standards set by the U.S. Consumer Product Safety Commission (CPSC) affecting “play yards,” portable playpens for infants and toddlers, will begin in December. Play yards are currently subject to voluntary safety standards, but the new standards will be mandatory for all manufacturers. During the four-year period ending in December 2011, according to the CPSC, play yards were involved in the deaths of over sixty children and injuries to nearly two hundred more. Play yards have reportedly been the subject of over twenty recalls during a twenty-five-year period. The new standards are part of a comprehensive set of reforms to children’s product safety known as Danny’s Law, named for a child who died due to a play yard collapse.

A typical play yard is a portable crib or playpen composed largely of mesh. In addition to acting as a crib for infants and toddlers, it can provide them an enclosed area in which to play. Children have died when a collapsing play yard traps them, while trapped under a mattress or other component, or by strangulation from straps attached to the sides. Some deaths resulted when children climbed out of a play yard and drowned in a nearby pool. The most common incident, according to the CPSC, involves a side rail collapse. In addition to the danger of a child getting out of the play yard after a collapse, it can also cause strangulation if a child’s neck is caught in the side rail. Side rail collapses account for up to ninety percent of reported play yard incidents and as many as one-third of play yard-related deaths. A side rail collapse reportedly caused the death of Danny Keysar, the namesake of Danny’s Law, in 1998 in Chicago.

Football Player Who Suffered Severe Head Injury Settles Lawsuit Against School District for $4.4 Million

May 16, 2012 | Lebowitz & Mzhen

A former high school football player, Scott Eveland of San Marcos, California, has settled his lawsuit with the school district over a head injury he sustained in a 2007 game. The injury has left him confined to a wheelchair, able to speak only through the use of an iPad or computer keyboard.

The issue of traumatic brain injuries in football has gained attention in recent months, with multiple lawsuits seeking damages from both athletic organizations and equipment manufacturers. Eveland had previously settled a products liability claim against the helmet manufacturers, and the remainder of the case focused on the liability of the school’s coaching staff.

Eveland was a senior at Mission Hills High School in San Marcos, located north of San Diego. He played linebacker for the varsity football team. According to the lawsuit, on September 14, 2007, he went to the athletic trainer to ask to sit out the first quarter because of a headache, which he claimed was so bad he could not focus his eyes. Eveland had already reportedly missed parts of practice due to headaches. The trainer went to the head coach who told the trainer, according to a student trainer who claimed to have witnessed the exchange, “You aren’t a [expletive] doctor,” and that the coach would decide who would play in the game. Both the trainer and the coach denied having this discussion in their depositions.

The Death of a Young Baseball Player and the Lack of Statistics on Youth Sports Injuries

May 10, 2012 | Lebowitz & Mzhen

The tragic death of a 12 year-old Chicago-area boy in a baseball-related accident has brought attention to a lack of data tracking regarding sports injuries in children. Although researchers have extensively catalogued injuries in athletes at the high school level and up, no one is collecting information on injuries to younger athletes. Sports can be a cause of serious injuries in children, so having access to information and statistics could help not only parents, but equipment manufacturers assess risks and develop safer products.

A 12 year-old boy from Oswego, Illinois, Eric Lederman, died in April from an injury caused by a baseball hitting him in the neck. Lederman was playing catch with a teammate on the side of the field while warming up for a game on Thursday, April 12. The ball struck him in the neck, reportedly hitting his carotid artery. He immediately collapsed and was taken to the hospital. He was pronounced dead at the hospital just after 8:00 p.m. The cause of death was determined to be a cerebral hemorrhage caused by blunt-force trauma, and was declared an accident.

NHTSA Delays Decision on Backup Cameras in Cars

March 22, 2012 | Lebowitz & Mzhen

The National Highway Transportation Safety Administration (NHTSA), an office within the U.S. Department of Transportation, has delayed a final rule regarding rear visibility requirements in cars. This is the second delay of the rule since the agency began working on it. The purpose of the rule would be to prevent “backover” accidents due to a driver’s inability to see people or objects behind the vehicle. The Secretary of Transportation has said that they expect to have final standards ready by the end of 2012.

The rule is required by the Cameron Gulbransen Kids Transportation Safety Act of 2007, passed by the U.S. Congress in early 2008. This law addresses several child safety concerns, including the risk to children of vehicles moving in reverse where the driver cannot see the child. It is named for a two year-old child who died when his father accidentally backed his car over him in their driveway. According to the NHTSA, 292 deaths and 18,000 injuries result each year from “blind zones” behind vehicles. The majority of the fatalities involve light vehicles, meaning those weighing 10,000 pounds or less. Those most vulnerable to these kinds of accidents are children and the elderly. In addition to addressing visibility issues, the law requires rules for auto-reverse in power windows and transmission systems that prevent cars from easily shifting out of “park.”

The proposed rule would require additional mirrors or even camera devices to enable drivers to see the area behind the vehicle while driving in reverse. In December 2010, the NHTSA announced that it expected to require new passenger cars, minivans, pickup trucks, and other vehicles to have “rear mounted video cameras and in-vehicle displays” to allow an expanded field of vision for drivers.

The New York Times reportedly found that backup cameras are already standard issue in forty-five percent of new vehicles, and that they are available as an option in twenty-three percent. For all other vehicles, owners would have to purchase cameras. The NHTSA reportedly estimates that, for vehicles without an embedded navigational screen, the cost to a vehicle owner would be between $159 and $203, and between $58 and $88 for cars with a screen already installed. The total annual cost for the country would be between $1.9 and $2.7 billion.

Secretary of Transportation Ray LaHood announced in February that the NHTSA would need to do further research before formally issuing the new rules. The rule has also proven to be controversial politically, considering the large price tag attached to it. The controversy persists even though it was actually President Bush who signed it into law in 2008. Bloomberg Businessweek says that it is among the five most expensive regulations still pending in the Obama administration, and it is one of many facing delays.

Elementary School Student Dies from Peanut Allergy

February 24, 2012 | Lebowitz & Mzhen

A seven year-old student died at her Richmond, Virginia elementary school in January after she ate a peanut that a classmate gave to her. The girl, Amarria Denise Johnson, had a severe peanut allergy. She had an immediate allergic reaction and was taken to the school clinic. She then went into cardiac arrest and died.

Although the school was reportedly aware of the child’s allergy, the classmate was not. An investigation by police concluded that the actions of the classmate did not rise to the level of criminal negligence, nor did the actions of the school and the child’s mother. A determination by law enforcement that no crime occurred does not preclude a civil case for wrongful death, although it raises the question of who has a duty to guard against injury from a food allergy.

A Chicago lawsuit deals with a similar situation. On the last day of the fall semester in December 2010, a 13 year-old girl, Katelyn Carson, died after going into anaphylactic shock when she ate some Chinese food at school. The girl had a severe allergy to peanut oil. Her teacher was aware of the allergy, so when he ordered Chinese food for an end-of-semester party, he reportedly requested that the food be prepared without any peanut products. Lab testing on samples of the meal found trace amounts of peanut products.

The girl’s family filed a wrongful death suit against the restaurant, Chinese Inn, in March 2011, claiming $100,000 in damages. The board of Chicago Public Schools, partly in response to Katelyn’s case, voted unanimously in January 2012 to spend nearly $200,000 to stock schools with Epi-pens, which can stop people with certain allergies from going into anaphylaxis.