How parents can establish liability and seek financial compensation from the manufacturer when their child is injured by a dangerous toy.
While most toys are safe, some can pose a serious danger to children.
Each year over 250,000 children are treated in hospital emergency rooms for toy-related injuries, including 13 fatal injuries. ¹ That’s an average of a child getting injured by a toy every two minutes.
Most children taken to the hospital for toy injuries are under the age of twelve, and half of those are under the age of five.
Parents have a right to expect the toys they buy for their children to be fun, educational, and safe.
Here’s where we unpack how to build a strong case against the toy manufacturer when your child has been injured by a dangerous toy.
Types of Dangerous Toys and Injuries
The United States has federally-regulated guidelines for the manufacture and import of toys in this country. ²
The comprehensive rules are designed to protect children from harmful toys. They include guidelines for:
- Surface coatings
- Small objects
- Cords and straps
- Wheels, tires, and axles
- Pacifiers and teethers
- Toy chests
Despite the rules, defective toys still end up harming our children. Defective toys may be identified and recalled yet remain in circulation and resold from consumer-to-consumer via yard sales, thrift stores, and online second-hand sale platforms.
The most common toy categories associated with child injuries include:
- Scooters, tricycles, and other non-motorized riding toys for young children
- Stuffed toys and action figures with small decorations, like “button” eyes
- Battery operated toys
- Toy vehicles
- Toy building sets
Some children are severely injured while using toys through no fault of the toy. For example, small children riding tricycles in driveways or on the road have been hit by cars.
However, toys that don’t comply with federal safety guidelines are considered defective. Manufacturers of defective toys can be held responsible for injuries to children.
The most common injuries from toys are:
- Bruising and abrasions
- Bone fractures
- Puncture wounds
Nearly half of all toy-related injuries are to the affected child’s face, head and neck.
Manufacturer Liability for Defective Toys
Toy injury claims are based on the legal concept of product liability, alleging the toy was defectively designed, built, or labeled.
In a product liability case against a designer or manufacturer, you’d argue that “but for” the manufacturer’s negligence, your child would not have been injured.
A product liability claim generally involves one or more types of product defect:
- Design defects are mistakes or flaws built into the toy when it’s first manufactured, or during design modifications, like rocket toys that can hit a child in the face.
- Manufacturing defects can occur even if the product’s design was safe, but there was a mistake made while the toy was being built, like coating the toy with lead-based paint.
- Marketing defects (“Failure to Warn”) happens when the manufacturer doesn’t provide the user with enough information to use the toy safely, like failing to advise that a toy with small parts is “not suitable for children under the age of three.”
Regardless of the cause of your child’s injury, such as choking on a small part or getting burned by a hot wire, if you want to take legal action, it helps to understand some common terms used by attorneys.
- Duty of Care is the legal obligation of the toy manufacturer to avoid causing harm to children.
- Negligence occurs when the manufacturer sells a toy that has a design or manufacturing defect or fails to label a toy with safe age ranges and instruction for the use of the toy.
- Liability means the toy manufacturer is responsible for damages resulting from the child’s injury.
- Damages are the personal and financial losses suffered by the injured child and their family.
Damages from defective toys can include your child’s medical bills, out-of-pocket expenses you paid for things like medicine and bandages, your lost wages if you had to miss work to care for your child, and the pain and suffering your child endured.
What is strict liability?
Sometimes the evidence showing a toy is dangerous is completely obvious. When authorities determine the design or manufacture of a toy is hazardous, parents aren’t required to prove the manufacturer was negligent.
Case Summary: Benchmark Penalty for Lead Paint in Toys
In 2009, the U.S. Consumer Products Safety Commission fined Mattel, Inc. and its subsidiary Fischer-Price with a $2.3 million civil penalty for violating federal lead paint bans.
The penalty was the largest fine ever assessed for a product safety violation.
About 95 different toy models sold by Mattel and Fischer-Price were found to be covered with paints containing non-compliant levels of lead.
Lead poisoning can cause brain and nervous system damage in children.
The dangerous toys, totaling nearly two million, had been imported from China between 2006 and 2007.
The toys were subsequently recalled.
Why Recalls are Important
Sometimes the only way a toy manufacturer learns about a defect is after parents complain.
Manufacturers recall toys because they don’t want their products causing any more injuries. They also don’t want to be sued because they failed to recall a dangerous toy.
Toy Recall: Snacktime Doll “Eats” Children’s Fingers and Hair
Mattel, Inc. introduced the Cabbage Patch Kids® Snacktime Kids doll in the fall of 1996. The doll could “eat” toy foods, chewing with its powerful battery-operated teeth and “swallowing” into a stomach cavity that could be later emptied.
After hundreds of consumer complaints and some lawsuits, including a threatened lawsuit seeking more than $25 million, from parents of children whose fingers and hair has been caught in the doll’s mechanized mouth, the doll was voluntarily recalled from the market.
Consumers were offered a $40 refund for the return of the defective toy.
At the time of the recall, more than 500,000 Snacktime Kids dolls had been sold.
Dangerous toy recalls are widely publicized on television, social media, the manufacturer’s website, as well as government sites. Usually, the manufacturer offers a rebate for the defective toy.
Visit the U.S. Consumer Products Safety Commission for the latest list of recalled toys.
When a dangerous toy is widely publicized, and a parent allows the child to continue playing with the toy, it will be much harder to prove the manufacturer is to blame for the child’s injuries.
The defense team for the toy manufacturer will argue that the parent is to blame for allowing their child to play with a recalled toy.
What to Do When a Toy Hurts Your Child
To build a strong case against a toy manufacturer, you will have to show:
- The toy was defective
- The toy was defective due to the manufacturer’s negligence
- As a direct result of the manufacturer’s negligence in the design, manufacture, or labeling of the toy, your child was injured
- Your child’s injuries resulted in compensable damages.
Gathering Evidence of a Defective Toy
The more evidence you can gather about the defective toy, the circumstances of your child’s injuries, and the scope of your child’s injuries, the stronger your product liability claim will be.
Get Immediate Medical Attention: An injured child should get immediate medical attention from their pediatrician, a hospital emergency room, or an urgent care center. Be sure to tell each medical professional who treats your child exactly how and when the accident occurred.
Keep the Toy: Set aside the defective toy, as well as its original packaging and purchase receipts if you have them. Put everything in a zip-top bag or a plastic bin labeled with the date of the accident.
Don’t let anyone handle the toy until you’ve talked to a personal injury attorney about your child’s injury claim.
Take Photographs: Pictures and videos make compelling evidence. Take pictures of the dangerous toy and of your child’s injuries. Continue taking pictures of your child’s injuries throughout treatment and recovery. Images of a small child in a hospital bed or wearing bandages can have a strong impact on a jury.
Get Witness Statements: Ask everyone who saw your child being injured by the defective toy to provide a written witness statement. The witness should describe everything they saw and heard, including your child’s cries of pain from the injuries.
Gather Medical Records: Gather copies of your child’s medical records and bills, receipts, copies of invoices, and other proof of payment for medical treatment.
Document Lost Wages: If you lost time from work while caring for your injured child, get a written statement of lost wages from your employer. Be sure the statement includes lost opportunities for overtime, and any vacation or sick leave you had to use. If you used FMLA, keep copies of the paperwork.
Keep a Diary: Begin writing daily detailed notes about your child’s accident, injuries, and treatment. Include descriptions of changes in the child’s behavior, bad dreams, bedwetting, or regressive behavior. Be sure to include notes on your child’s pain levels, reaction to medicine, special diets, and any other information that shows how the injury has affected your child.
When to Hire an Attorney
If the injuries weren’t serious enough to see a doctor, you probably don’t have a case. It’s not enough that your child sustained a minor cut or bruise, or momentarily gagged 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.
However, toys that cause even minor injuries should be reported.
If your child was seriously injured by a defective toy, you’ll need a skilled personal injury attorney to get anywhere near fair compensation.
Toy manufacturers are big corporations with an army of defense lawyers. 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 that the toys they sell are safe for children.
Only an experienced personal injury attorney has the legal knowledge to get the toy maker and retailer to offer a fair settlement for your child’s injuries.
Most states have strict rules about handling compensation for children under 18 years of age. The courts want to ensure any financial agreements are in the best interest of your child. Your attorney will make sure the toy company bears the cost of any special arrangements for your child.
Don’t try to tackle corporate giants on your own, and don’t give up on a fair outcome. There’s no cost to find out what a good personal injury attorney can do for you and your child.
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