TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Sunday, September 24, 2006

Toy Workbench Recalled, Meets Federal Standards

Playskool is recalling (official notice from CPSC) its toy toolbench after two children got the fake nails caught in their throats and died.

The toy was in compliance with all relevant federal regulations, according to news stories and the CPSC report.  The nails are not considered "small parts" based on their measurements and the toy was aimed at children three and older.  The children who died were 19 months old and two years old.  At least the latter death is the subject of a lawsuit.

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Question: Do we, as a society, believe that federal standards should be (a) a floor or (b) both a floor and a ceiling?

Depending on one's answer, the situation referred to in the post would imply that (a) the federal standards are too low or (b) Playskool should be immune from liability.

In short, two people will take away two different conclusions from this post, and perhaps it is for this reason that questions of legal reform often result in an impasse.

Posted by: seth (not a lawyer) | Sep 24, 2006 6:53:23 PM

How about (c), a floor and presumptive evidence of a lack of negligence/defect?

And there's another factor in the mix here, isn't there? The children who were injured were both below the labeled age.

I teach a very similar course in my products class, involving a Playskool product, an under-age victim, and full regulatory compliance. Students' reactions are quite interesting.

I'm also not sure that everyone who concludes that the standards should be only a floor would necessarily conclude that federal standards are too low. This tragic result might be evidence of that, but not conclusive.

Posted by: Bill Childs | Sep 25, 2006 3:57:12 AM

Going backwards, I didn't mean to imply that everyone who thought (a) would conclude that the standards were too low, I just meant that they would believe that it would not be an immediate bar to suit.

On the age question - that is certainly another factor to consider, as I'm sure there are many in every case. Using a product in a manner for which it is clearly not intended would, it seems to me, usually put the onus on the consumer. But, I was really only interested in the question of federal standards as a barrier to entry. A question that I ask sincerely, as I do not know the answer.

As to your suggestion of (c), this I find interesting. Please forgive me if I sometimes miss the obvious - as always, I'm not a lawyer, just a guy interested in the law and the way it affects us.

As I read it, presumptive evidence of a lack of negligence/defect would not automatically dismiss a case like this, but it would require the plaintiff to meet a higher standard of evidence. My first reaction is that would not be unreasonable. I'll have to try to learn more about presumptive evidence, I suppose. :)

At any rate, thanks for giving me something to think about. As always, I find this blog enlightening.

Posted by: seth (not a lawyer) | Sep 25, 2006 6:53:02 AM

That's one way that a presumption could work -- i.e., the jury would be told that it should presume that the relevant agency did its job as to the questions it addressed, and that if the jury were to find liability, it would have to find the facts by clear and convincing evidence rather than just a preponderance. (This is, not coincidentally, more or less the standard for finding a patent invalid. I have an article in the Minnesota Intellectual Property Review on the issue.)

It could also be something more, making it so that suit would be precluded entirely unless the plaintiff could show that there was something wrong in the regulatory process -- evidence hidden from regulators, corruption, etc.

I'd be inclined to like the first, but my views wander around a bit.

I wrote more about this at Point of Law this summer. (In case that link doesn't work:

Posted by: Bill Childs | Sep 25, 2006 9:24:43 AM

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