Hot Docs: Parents sue Wal-Mart after drop-side crib suffocates seven month old son

April 18, 2013

Drop-side cribOn December 28, 2010, the U.S. Consumer Product Safety Commission (CPSC) issued a new rule relating to requirements on cribs.

Among these new requirements were prohibitions against the manufacture or sale (including resale) of drop-side rail cribs, effective June 28, 2011.

According to the CPSC, there were 32 infant and toddler fatalities related to drop-side cribs from 2001 to 2010.  These deaths were due to “suffocation and strangulation hazards created by the drop side.”

Typically, when a certain product is deemed by government regulators to be so unsafe, product liability lawsuits follow.  And from the looks of it, they’ve already started with drop-side cribs.

A complaint filed last week is one such lawsuit: Richard and Labreka Morris, parents of the now-deceased Kelvin Morris, are suing Wal-Mart over the death of their son, which the complaint claims was caused by the drop-side crib sold by the retailer.

According to the complaint, Wal-Mart “participated in” and “approved of” the design of the “Generation 2 Worldwide” brand crib that allegedly caused Kelvin’s death.  In addition, the complaint alleges that Wal-Mart failed to provide adequate warnings and instructions regarding “the inherent concealed danger” of the drop-side crib.

Product defect claims actually come in a few different flavors.

The first is a “manufacturing defect,” in which the product contains a manufacturing defect not intended by the product’s design, “even though all possible care was exercised in the preparation and marketing of the product.”

The second is a “design defect” – when the “foreseeable risks of harm” posed by the product could have been reduced or avoided “by the adoption of a reasonable alternative design.”

The third is “inadequate instructions” or “failure to warn,” in which the foreseeable risks of harm could have been reduced or avoided by the furnishing of “reasonable instructions or warnings.”

The latter two types are what are being alleged here (and sellers such as Wal-Mart, not just the manufacturer, can be found liable for all three).

Hot Doc: Morris v. Wal-Mart

Source: Thomson Reuters News & Insight – National Litigation

For the Morris’s to succeed on their first claim (the design defect), they would have to demonstrate two principal points: that the risk of harm caused by drop-side cribs was foreseeable, and that the risk of harm could have been reduced or avoided by using a “reasonable alternative design.”

As to the first detail, if the crib was purchased anytime in the past five to seven years, Wal-Mart should have been well aware of the risks posed by the drop-down crib design.  At least as early as 2007 (and possibly earlier), the CPSC was issuing voluntary product recalls on various drop-down crib designs.

Even if the crib was purchased well before the dangers became widely known, there’s still a strong argument for finding foreseeability, mainly because the possibility of the crib’s side dropping down and trapping an infant isn’t exactly a hidden risk (then again, hindsight is 20/20).

Regardless, the foreseeability issue is going to be much easier to establish than the “reasonable alternative design.”

If the court views the “design” in question as the “drop-side” element of the crib, the claim suddenly becomes a bit more complicated, since there really isn’t any alternative type of drop-side crib that would significantly reduce the risk of infant and toddler suffocation and strangulation.

Even if the plaintiffs are unable to demonstrate that such an alternative design exists, that doesn’t necessarily preclude their claim, since most courts will find liability in the absence of such an alternative “when the product design is manifestly unreasonable.”  This may well be the case here, since the benefits associated with the element of a drop-down side of a crib (convenience) are far outweighed by the risks.

The second claim, failure to warn, will be harder to gauge from just looking at the complaint, since all it alleges is that the crib came with “no warnings to the ultimate consumer of the inherent concealed danger of said crib.”

If this turns out to be true, and foreseeability is established, the claim seems pretty solid.

It will be interesting to note how this case proceeds, since there doesn’t appear to be any other drop-side crib product liability cases dealing with the death of an infant (there is a 2009 Eighth Circuit Court of Appeals case, but no fatalities or other physical injuries were alleged).

Since the number of fatalities related to the product appear to be less than 100 (although the CPSC has noted “hundreds of incidents”), it doesn’t seem likely that a class action case will arise here.

However, I would be surprised if any of these cases proceeded to trial, primarily for the reason that I haven’t specifically discussed yet: the impact on the jury of hearing about these plaintiffs’ (or any other similarly situated plaintiffs’) heart-wrenching tragedy of finding their seven month old son “mechanically suffocated” when they believed him to be safely sleeping in his crib.

Thankfully, the sale of these cribs is now prohibited, making it far less likely that future tragedies will occur.