Purchased a previously recalled swingset...

by William
(Allenton, WI)

I purchased a playset / swingset for my kids in the fall of 2008. We got it at a large retail store on clearance as it was an older model from 2006. Late last summer one of my children fell off the playset / swingset due to it breaking. The wood was rotted badly in the broken area.

I researched the product online and found that it had a recall associated with it in 2009. I contacted the manufacturer and they sent me a free repair kit. Then, this year in early spring my son fell off this same playset again due to another area breaking from rotted out wood.

I decided to see if there was anything else recall-wise out there that I may have missed. Sure enough, I found that this exact unit was recalled in 2006 due to rotting wood which could create fall hazards.

Now, we bought a 2006 model in 2008 that was on clearance. Everything matches up perfectly as far as part numbers and dates and such. This product should have been removed from the shelf or we should have been provided a repair kit for the recall. Obviously neither of these things happened.

Based on the research I have done, this is something that is illegal for a retailer to do.

I have spoken to the manager and district manager of the retail store and they both referred me to guest services. I have to fill out a form explaining the situation. At the bottom of the form it asks me what I'm looking for in regards to compensation and I don't know what to put down. I paid $400 for the playset and had to haul and assemble it myself.

Is there any way to figure out how much I should ask for? Thank you.

Visitor Question:
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ANSWER for "Purchased a previously recalled swingset...":

William (Allentown, NY):

Fortunately it doesn't look like your son was injured when he fell. When it comes to defective products you really don't have to prove anything. A manufacturer is "strictly liable" for injuries sustained by a "user" of the product.

Absent injuries you are left with a defective swing set and the cost of its replacement. Your time, effort and aggravation should be compensable. It's only a matter of how much. In your case probably not a lot. If consumers were permitted to recover compensation for aggravation caused by manufacturers of defective products the courts would be backed up for years.

Unfortunately it is rare for a manufacturer to compensate a consumer for his aggravation. A "measuring" mechanism doesn't exist for such compensation and their isn't a legal precedent for it either. Compensating customers for aggravation would also set a dangerous precedent. Manufacturers don't want those types of precedents set.

You might ask for $1500 dollars. That probably wouldn't be considered outrageous. You might want to draw the line on the low end at $500 dollars. Hopefully they will agree to pay you an amount somewhere between the two figures.

But remember, legally they don't have to pay you a dime and if you take them to court your case will likely be summarily dismissed on a motion for Summary judgment.

You are mistaken about the illegality of a manufacturer keeping a defective product on the market. To be illegal is to be criminal. The manufacturers failing to remove the swing set from the market is not a crime. But you can always report them to the Consumer Product Safety Commission.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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