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

FidgetSpinner

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.

 

WHAT IS A STATUTE OF LIMITATIONS?

There is a period during which an individual can be charged for a crime or file a lawsuit, called the statute of limitations. It is put in place largely to protect individuals from being sued or criminally charged for a violation beyond a reasonable amount of time. The statute of limitations varies from state to state, but overall does not include serious crimes such as murder, kidnapping or forgery. These crimes do not have a statute of limitations because the perpetrator might remain a danger to society for an open-ended amount of time after the crime was committed.

In the state of New York, the statute of limitations on civil cases ranges depending on the type and facts of each case. For example, a case in which a plaintiff is suing the defendant for intentional emotional distress, the statute of limitations is 1 year. This means, after one year following the traumatic event, an individual could not sue another based on intentional emotional distress

Slip and fall cases and motor vehicle accidents based on a theory of negligence have a slightly longer statute of limitations, and these types of cases can be brought to the court up to 3 years after the event. Medical malpractice cases can be filed up until 2 years and 6 months from the date of malpractice, or from the date of the last treatment rendered by the physician if continually treated by that physician for that condition.

If you’ve been the victim of negligence resulting in personal injury, although you generally have 3 years following the date of incident to file a lawsuit, it is important to note that there are many exceptions to these rules, and an attorney should always be consulted if you feel you’ve been the victim of someone else’s wrongdoing. The attorneys of Spiegel, Brown and Fichera, LLP will provide a free consultation and advise you of these time limits based on the individual circumstances of your case and help you decide the best course of action.

WHAT TO DO AFTER A DOG BITE

While dogs can be wonderful companions, they can also be dangerous animals. Dog bites occur can occur when you least expect it since dogs can only communicate through their actions. When dogs are provoked, feel threatened, scared or stressed they may lash out at a person and bite. Dogs’ jaws are very strong and the force of a bite can result in a serious injury.

According to the Centers for Disease Control, approximately 4.5 million dog bites occurred in 2016 with 900,000 of those cases resulting in an infection. It’s important to protect your family and take action should it happen to someone you love.

The first thing you should do after a dog bite is seek medical attention to decrease your chances of infection. Though extremely rare, fatalities resulting from dog bites do occur.

Second, consult an attorney to determine whether you have a legal claim and what damages you may be able to recover. It is important that you collect the name and phone number of the dog’s owner and the name and phone number of any witnesses.

The State of New York does not have a “dog bite statute.” Instead, common law or prior cases, govern liability in dog bite cases. Common law permits recovery of damages on a strict liability basis if it can be shown that the dog has “vicious propensities,” for example, has a history of biting people with the owner’s knowledge. “Vicious propensities” has been defined as the propensity to do any act that might endanger the safety of people and other people’s property. The New York Court of Appeals has made it clear that a history of biting people is only one type of evidence to show a dog’s dangerous propensities. See Collier v. Zambito, 1 NY3d 444 (2004). Other evidence includes a dog’s tendency to growl, snap, bare its teeth and a propensity to act in a way that puts others at a risk of harm. Where it cannot be shown that the owner knew or should have known of the dog’s vicious propensities, the plaintiff will have to prove that the owner was negligent in some way.

There are cases where dog owners are not liable for the attack. In this instance, the owner would have to take measures to keep the dog away from others as well as warn others that the dog was dangerous. If the person who got bitten was aware of all this, but failed to mitigate their risk, the owner might not be liable.

Since there is no “dog bite statute” and many exceptions to each situation, it is important to consult an experienced attorney to handle such a case. Spiegel, Brown and Fichera has been fighting for dog bite victims in the Hudson Valley for over 40 years.

HOW SOCIAL MEDIA IMPACTS PERSONAL INJURY CASES

Social media has become a huge part of many people’s day to day lives. As people become more and more comfortable with sharing their lives online, the laws have had to adapt. There can be legal ramifications for what people post online, like in cases of cyber bullying and harassment. Although trivial, it might be wise to take a break from all your social media sites if you are in the middle of an ongoing personal injury case.

Here’s why:

Attorneys can use Discovery to gain access to your account If you are the plaintiff in a personal injury case, defense attorneys look for evidence to suggest your claim is an exaggeration of your injuries or the extent of its effect on your life. In a personal injury case, attorneys are entitled to discovery. “Discoverable” information is that which is “material and necessary” and “reasonably calculated” to lead to relevant information. For example, if you claim your injury has impacted your ability to walk but there are pictures of you walking around enjoying your weekend with friends, this could be used against you. If these pictures are public, the court may decide that it can be inferred that private information may contain material that contradicts or conflicts your claims or injuries and order disclosure of the private information.

Even if your account is “private”, you can still be at risk Due to the fact that defense attorneys may be able to use Discovery to obtain access to material that refutes your claim, your private settings won’t protect you.

Don’t tweet about the defendant Though you may feel upset with the person who you feel caused your injuries, negative posts you write about them can be used in court as well. However justified in your anger you may be, the defense attorneys can portray you as being someone who is exaggerating and simply out to get money.

Posting about your injuries and activities can backfire When you write about your injuries and your daily activities on social media, your description may be different than the official claims made in court. If your claim on Facebook is inconsistent than the doctor’s claim testifying for the case, the defense could find this to be a falsehood. In summary, don’t even tweet about your injuries or daily activities. Posts on your social media can decrease the value of your argument in the court.

SELF-DRIVING CAR CRASHES AND THEIR IMPACT ON PERSONAL INJURY CASES

Recent news of self-driving cars from Uber, Google, and Tesla is both exciting and a bit unnerving. Handing over the wheel to a computer can give drivers a sense that they are not in control, and therefore more unsafe. Every so often, news of a self-driving car crash emerges. However, self-driving cars are proven to be even safer than human drivers.

Google’s fleet of self-driving cars have traveled more than 1 million miles since their launch in 2009 and have only experienced 16 accidents. Interestingly, none of the incidents were the fault of the computer system. Accidents that involve self-driving cars are usually the fault of those around them, as aggressive drivers are not accustomed to the degree to which autonomous vehicles adhere to rules of the road.

Data collected over multiple years of testing shows that self-driving cars crash less often. 90% of all car crashes are caused by human error, killing 40,000 in just 2016 alone, per the National Highway Traffic Safety Administration. The fact of the matter is that autonomous vehicles cannot get drowsy, distracted, drunk, or become enraged at the wheel.

However, the 2016 Tesla crash proves that these cars are not perfect in discerning their surroundings. A white tractor-trailer made a turn in front of the self-driving car, blending into the overcast sky. The car essentially did not see the danger ahead, and neither did the driver, who was watching a movie at the wheel and was killed.

Hacking is another concern car makers have about these new machines. Proof-of-concept attacks have been tested on these vehicles, showing that laser pointers can force the car to swerve, slow down, and come to a complete stop.

It is important to weigh the risks associated with self-driving cars, especially until legislation can effectively regulate the advancing technology. One of the ethical gray areas of self-driving cars is that decision making is written into the computer code of the vehicle. Although it removes the element of driver error, it requires relying on a computer rather than a human to make a judgment call in the face of potential danger. As the 2016 Tesla case showed, the vehicle’s computer did not detect an impending danger in order to avoid an accident.

In the event there is a motor vehicle accident involving a self-driving vehicle and a person is injured, the avenue for seeking compensation for those injuries depends on whether the at-fault vehicle was a self-driving vehicle or one operated by a human. If the at-fault vehicle was driven by a human, compensation can be sought by filing a claim with the driver’s automobile insurance company. However, if the at-fault vehicle was a self-driving vehicle, the cause of the accident would not be driver error, but either a faulty computer or the inability to detect an impending threat prior to an accident occurring. In this case, the claim would not be made against an individual, but the manufacturer of the self-driving vehicle. This would essentially be a product liability claim. So far though, the majority of accidents reported involving self-driving vehicles were caused by error on the part of the driver of another vehicle. If this remains the case, the majority of personal injury claims resulting from motor vehicle accidents will still be made through the driver and/or vehicle owner’s insurance company. As technology evolves, it will be interesting to see how self-driving vehicles will impact the area of personal injury law.