While most toys are safe, there are some that pose serious dangers to children. Each year over a quarter of a million children are injured and killed by dangerous toys (1). And those are just the reported injuries. Over 60 percent of children injured are under the age of 15, and the majority are boys.
The most common injuries from toys are:
Many children are injured because they weren't properly supervised. Other injuries occur because the parent failed to follow the toy manufacturer's instructions.
Serious injuries can also occur due to a toy being inherently defective or dangerous. A dangerous toy may have been manufactured using cheap or toxic materials. Also, many toys are mass produced and assembled in third world countries, where quality is not nearly as important as quantity.
The most common toys that cause injury include:
Toy injury claims are based on the legal concept of product liability, alleging the toy was defectively designed or built. In a product liability case against a designer or manufacturer, you'd argue that "but for" the negligent design or manufacture of the toy, your child would not have been injured.
Regardless of the cause of your child's injury, such as choking on a small part, or getting burned by a hot wire, the actual legal basis for your claim will be the negligence of the designer or manufacturer.
Imagine your child was injured by a dangerous toy. You're upset, and are sure the injury was the result of defective design. In order to win your child's toy injury claim, you must be able to prove four main elements, called your burden of proof. These elements are:
If the injuries weren't serious enough to require medical care, you probably don't have a case. It's not enough that your child sustained a minor cut or bruise, or momentarily choked on a piece of the toy. To have a valid personal injury claim, your child's injuries must be serious enough to require medical care (if not, you can still report the product.)
In addition to medical costs, you can also include out-of-pocket expenses (ex. medications, bandages, etc.), your lost wages if you had to miss work to care for your child, and the pain and suffering your child endured.
The law states the manufacturer of a toy must exercise reasonable care in its design and manufacture, so the toy does not unnecessarily harm a child.
The law does not state the manufacturer has an absolute duty to ensure your child will not be injured by the toy. What the law is really saying is that the manufacturer does not have to cover every possible way that your child might be injured by the toy. That would be unreasonable.
Example: Choking hazard
Jeffrey purchased an army doll for his four-year-old son Justin, who played with the doll for several months without incident or injury. One afternoon, Justin's mother Olivia found him choking on a plastic arm which had broken off the doll after it went through a dishwasher cycle without her knowledge.
Justin was rushed by ambulance to the hospital where he underwent surgery to remove the plastic doll arm which had lodged in his throat. Justin's parents found an attorney and sued the manufacturer. They argued:
The court disagreed, and dismissed Justin's case. The court stated it wasn't reasonable for the manufacturer to have designed the doll to withstand dishwasher temperatures of over one hundred forty degrees. The court also said the evidence showed over one million of the same army dolls had been manufactured in the previous year, and only one hundred and twenty cases of injury had been reported.
There's an exception to the legal burden of proof in dangerous product cases. It's known as strict liability, and can greatly reduce a parent's obligation to prove negligence.
In strict liability cases, the courts only require the parents of an injured child to prove one element, instead of the usual four. That is, they must show compensable damages, or proof of their child's injuries and resulting costs.
Sometimes the evidence showing a toy is dangerous is completely obvious. When a court believes the design or manufacture of a toy is clearly hazardous, parents aren't required to spend time proving it. The court doesn't want to waste its time listening to lawyers argue the toy is safe. To the court, it's clear the toy isn't safe.
Example: Lead poisoning
Adrian purchased a set of miniature toy cars for his four-year-old son Christopher. The cars were made of metal and painted in various colors.
Christopher played with the cars for several weeks without incident. According to his preschool teachers, he became irritable shortly afterwards. One day, he stopped eating his lunch, became nauseous and started vomiting. He was taken to the hospital, where he was diagnosed with lead poisoning.
Several of the toys were tested for lead; all but one showed no indication of toxicity. Christopher's toy metal cars, painted with lead based paint, were the cause. Christopher had ingested the lead through his pores and his saliva.
Adrian and his wife sued the manufacturer of the cars under the theory of strict liability. Their attorney argued the cars were dangerous because of the manufacturer's negligence in using lead based paint. The danger from the lead based paint was clear and indefensible, and directly resulted in Christopher's damages.
The court agreed, ruling in Christopher's favor. The court also ordered the manufacturer to immediately recall all of the metal cars covered with the same lead based paint.
In dangerous toy injury claims, the retail store where the toy was purchased may also be held liable. Retailers must do everything reasonably possible to ensure the toys they sell are safe for children.
This might include doing research on a manufacturer before agreeing to sell their toys, reviewing the manufacturing specifications to confirm the toy is built using safe materials, and evaluating the toy to confirm it's safely constructed.
If your child's injuries are minor and didn't require medical treatment, it's probably not worth filing an injury claim. It's unlikely an attorney would accept such a case. When it comes to minor defective product injuries, you may have to write it off to experience.
But, if your child's injuries were more serious, you should review your case with a personal injury attorney as soon as possible. The manufacturer will deny the toy was dangerous or defective, and the retailer will say it's not his fault. Only an experienced attorney can apply the leverage needed to pursue a claim like this.
These cases will almost always require filing a lawsuit, pretrial hearings, and discovery (depositions, subpoenaed records, motion hearings, etc.). This is real lawyer stuff. Product liability cases require a great deal of legal expertise and can take years to resolve. They aren't like car accident cases, which can often be settled with a few letters and phone calls.
Most personal injury attorneys don't charge for initial office consultations. Make appointments with several in your area and bring all your evidence to the meetings. This includes the dangerous toy, your child's medical bills and records, photographs of the scene and your child's injuries, receipts for your out-of-pocket expenses, and any witness statements you may have.
Burned by Electronic Doll
In this example, a child is burned by a defective electronic doll when a connector in the battery pack ignited. We examine the concept of strict liability and discuss settlement negotiations.
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