Fidget Spinners Listed as Top Ten Dangerous Toys: Think Twice This Holiday Season

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One of the season’s hottest toys, the Fidget Spinner, has recently been listed as 1 of the top 10 most dangerous toys by the nonprofit called World Against Toys Causing Harm, or WATCH. The popular spinning toy has bearings that may come loose and fly into a child’s eye or create a choking hazard for younger children. In May of this year, a child in Texas choked on one of these bearings and required surgery to remove the bearing from her esophagus. What does this mean for you this holiday season? Be wary of toys that may seem harmless and be sure to check for recalls before making any purchases.

That look on your child’s face when he or she receives that long-awaited toy on Christmas morning – priceless. Nevertheless, this Kodak moment can turn into a tragedy in the blink of an eye. The Consumer Products Safety Commission reported that in 2015 alone there were 185,500 toy-related injuries and 11 toy-related deaths in children under the age of 15. Non-motorized riding toys were the source of most injuries and 45% of deaths.

Fortunately for parents and children, consumers are protected against oversights by manufacturers who produce and sellers who distribute defective products in the state of New York. A product liability action may be brought under any or all of three legal theories: Negligence, Strict Products Liability and Breach of Warranty. Under these causes of action, you may have one or more of the following claims against the manufacturer and possibly the seller and other distributors:

Design Defect
In a design defective case, the plaintiff must prove that:

  • The product was not reasonably safe due to the substantial likelihood of harm;
  • It was feasible to design the product in a safer manner; and
  • That the defect was a proximate cause of the injury sustained.

In determining whether plaintiff has met this burden, the court applies the “risk versus utility test” which evaluates whether the economic costs are higher than the cost of changing the product’s design.

Manufacturing Defect
When there is a flaw in the manufacturing of the defective product, the plaintiff aims to prove that the product caused injury because it did not perform as intended and that another product with the identical design did perform as intended.

Failure to Warn
When a product has an inherent danger that is foreseeable if used in a certain way, even if the use is unintended, it is the responsibility of the manufacturer to issue a warning. The manufacturer is obligated to give adequate warning of how a person should correctly use the product in order to avoid injury.

In the event that your child tragically sustains injuries this holiday season as a result of a defective toy, you should seek medical attention right away and make sure you keep records of all injuries inflicted by the toy. It is also important that you contact an attorney right away because the statute of limitations clock in New York runs out three years after the injury occurs. It isn’t unheard of for manufacturers to take advantage of victims by forcing them to forfeit their right to take legal action. Contact the dedicated legal team at Spiegel, Brown and Fichera, LLP who leverage their decades of experience to guide you on how to proceed with your claim and to ensure that a claim is made against all those who may be responsible for your child’s injuries.

For age-appropriate toy buying guides and additional safety tips, follow the link to the Consumer Product Safety Commission: https://www.cpsc.gov/safety-education/safety-guides/toys.

 

New York Car Seat Law Changes

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On October 23, 2017, Governor Cuomo signed a bill that goes into effect on November 1, 2019 requiring children under the age of 2 to remain in rear facing car seats. The underlying legislation cited a study conducted by the American Academy of Pediatrics that showed a rear-facing car seat best protects a child’s head by “preventing the relatively large head from moving independently of the proportionately smaller neck.” Failure to abide by the new law will result in a penalty of a fine of $100 and 3 points on the driver’s license for violations involving children under the age of 16. This penalty applies to violations of New York’s Occupant Restraint laws applicable to children under 16 years of age.

Motor vehicle accidents are a tragic cause of death amongst children that can often be prevented by an increased use of the appropriate safety restraints. The first step to keeping kids safe in the car is ensuring the use of a child safety seat, booster seat, or seat belt as their height and weight requirement permits. According to the Center for Disease Control and Prevention, car seats reduce the risk of infant fatality by 71% and to toddlers by 54% in passenger vehicles.

Aside from ensuring kids are buckled up, correct usage of car seats and booster seats can save lives. Knowing which kind of car seat your child should be using based on their age, height and weight is preeminently important. After installing the car seat following your specific car seat’s guidelines, you should register the car seat here to receive any recall notices should they occur. New York’s current Occupant Restraint laws require the following:

  • Children up to the age of 4 must be properly restrained in a federally approved child safety seat that is attached to a vehicle by a seat belt or universal child restraint anchorage (LATCH) system. However, a child who is under the age of 4 and weighs more than 40 pounds may be restrained in a booster seat with a lap/shoulder safety belt.
  • Children ages 4, 5, 6 and 7 must be properly secured in a child restraint system that is designed to accommodate a certain height and weight.
  • Children ages 8 through 15 must be restrained by a seat belt that has both a shoulder and lap belt. According to The CDC states that seat belts reduce the risk of death and severe injury in half for older children and adults.
  • Although not required, it is recommended that children be secured in a booster seat until the child reaches 4 feet 9 inches in height or weighs 100 pounds.

In addition to New York’s laws, the CDC recommends that children be seated in the back seat until the age of 12 to prevent injury from a front seat airbag. The safest spot for children in the back row is the middle back seat. Having your child seated in the back seat reduces his/her risk of death by 33%.

Above all, parents and caregivers must set an example for children by using a seat belt themselves. As children get older, they may be resistant to comply with the child safety restraint laws, especially if they see a role model ignoring regulations. To keep your kids safe, you must also take your own safety seriously.

Is Your Ford Explorer Poisoning You?

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If you drive a Ford Explorer, it may be poisoning you. According to the National Highway Traffic Safety Administration (NHTSA), there have been more than 2,700 complaints about carbon monoxide poisoning in drivers and passengers of 2011-2017 models of Ford Explorer SUVs.  41 injuries and 3 motor vehicle accidents are presumed to be linked to the poisoning. Just this past July, 24 officers in Texas were found to have high levels of carbon monoxide in their blood, leading the police to remove 400 Explorers from the roads.

Symptoms of carbon monoxide poisoning can be dangerous for both drivers and passengers and include the following:

  • Headaches
  • Nausea and/or vomiting
  • Weakness
  • Confusion
  • Blurred vision
  • Loss of breath
  • Loss of consciousness

The NHTSA has determined that the poisoning is attributed to leaky exhaust systems in the SUVs. At the urgency of the Center for Automobile Safety, although Ford has not agreed to do a formal recall, they have agreed to inspect and repair the exhaust systems of Ford Explorer models 2011-2017 free of charge. If you or someone you love owns a 2011-2017 Ford Explorer, contact your local Ford dealership immediately to schedule an appointment to have your vehicle’s exhaust system inspected and repaired:

In Poughkeepsie – 845-462-1900
In Beacon – 845-831-1400
In Newburgh – 845-561-3900
In Kingston – 845-338-7800
In Rhinebeck – 845-876-4400

In the event you need legal assistance, don’t hesitate to contact an experienced car accident attorney at Spiegel, Brown and Fichera LLP.

Why the California Fires should be a Wake-Up Call to New Yorkers

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In the wake of the destructive and horrific California fires, it has been reported that at least 40 people have died and 5,700 homes and businesses have been destroyed since the wildfires began making it one of the deadliest fires in California’s history. In just 30 seconds a single flame can turn into a full-blown fire capable of great destruction. Although wildfires are uncommon in New York, other causes of fires including electrical problems can destroy homes and other buildings. What may surprise you is that your home insurance may not cover your losses if your house is destroyed in a fire.

In recently reported news, two years ago a woman in Long Island was denied her claim after a house fire. The reason? Her application failed to mention that she owned a pit bull. Last year a family in Queens lost their home to a fire. What was the insurance company’s reason for denying their claim? The house had a third apartment and the family was only paying to insure a two-family structure. Later that same year a family in Middletown was forced to pay out of pocket to stay at a hotel after a house fire because the home insurance policy didn’t cover rent in the event a family is displaced by a fire.

When an insurance company fails to pay on a claim there are two potential causes of action: Breach of contract and breach of the duty of good faith. A breach of contract claim is based on the insurance company’s failure to pay according to the terms of their contract whereas a breach of the duty of good faith is based on the insurance company’s failure to thoroughly examine a claim and reasonably negotiate a settlement. Unfortunately, New York is one of the few states that does not permit a private cause of action against an insurance company for bad faith. Despite this, the New York Court of Appeals has held that policyholders can recover consequential damages or “extra contractual damages” from insurance companies if the damages were foreseeable at the time the policy was written. However, subsequent cases hold that these damages must be alleged within the breach of contract claim not as a separate bad faith claim.

Since lawsuits against insurance companies for failure to pay claims are limited in New York it is important to make sure your homeowner’s insurance policy adequately protects you in the event of a fire. Some tips when shopping for homeowner’s insurance are as follows:

  • Ensure that the information on the application is complete and accurate
  • Make sure the policy covers rental fees in the event you are displaced from your home
  • Look for language that protects the contents of your home in the event they are damaged in a fire
  • Make sure it covers other detached structures on your property such as a garage or shed

For additional information or in the event you have been injured in a fire, contact the legal team at Spiegel, Brown and Fichera.

“Hurricane Cars” are Likely to Flood the Used Car Market

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With still two months left in the hurricane season, the United States has already been hit with two major category 4 hurricanes, Harvey and Irma. These two storms resulted in intense storm surge and flooding. According to Carfax, it is estimated that 500,000 cars sustained flood damage from Hurricane Harvey. Carfax estimates that half of these cars will end up being sold in the used car market, and often are shipped to distant locations where consumers may be less aware of the potential of purchasing a flood damaged vehicle. According to Consumer Reports, many of these vehicles appear in the market with clean titles and are disguised as used vehicles rather than salvage vehicles. Flood damage is easily concealed and can be difficult to spot so it is important to be cognizant of this when shopping for a used car.

Some warning signs of flood damaged vehicles include the following:

  • Debris and dirt under the seats, in the doors or glovebox, under the hood, in the truck and in the wheels
  • Musty odors that may be covered up by a strong scent of air freshener
  • Upholstery that does not match
  • Rust and corrosion in unexpected places such as under the seats
  • Evidence that seat screws that have been removed
  • Water lines on the head and rear lights and behind the engine
  • Evidence that rubber drain plugs have been removed

In addition to physically inspecting the car for any flood damage, it is important that the car be taken for a test drive to discern if there is any mechanical or technological damage to the vehicle. Even with these initial inspections, there are long term effects of a car being submerged in water that may take months or years to appear as a result of corrosion and oxidation. The damage sustained by “hurricane cars” can lead to vehicle malfunction and make operation of these cars dangerous for drivers and passengers.

For additional resources and to find out if a particular vehicle has sustained flood damage visit https://www.carfax.com/press/resources/flooded-cars.