Target Expands Recall Of Step Stools With Storage Due To Fall Hazard

News from the federal government about a dangerously defective stool that Target’s selling:

WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of Product: Step Stools with Storage

Units: About 341,000 (206,000 were recalled on August 4, 2011)

Importer: Target Corporation, of Minneapolis, Minn.

Hazard: The wooden step stools can break apart or collapse under the weight of the user, posing a fall hazard.

Incidents/Injuries: Target has received 27 reports of the stools breaking or collapsing. Fourteen incidents involved children, eight involved
adults, and five incidents where the user’s age was unknown. Two adults fractured their wrists, and of those victims, one also fractured her hip and pelvis. Additionally, six children and one adult suffered scrapes and bruising.

Description: The wooden step stool has two steps and comes in various colors, including natural, natural and red, white, pink, blue and honey. The Circo step stool has a lid on the bottom step that lifts to provide storage. The Do Your Room (DYR) step stool has a lid on the top step that lifts to provide storage. The step stools measure approximately 13″ H x 13 5/8″ W x 14 1/8″ D. The Circo brand name or DYR brand name and UPC numbers are printed on a label found underneath the step stool. The following step stools are included in this recall:

Step Stools With Storage
Brand Name	Style Description	UPC Number	Selling PeriodCircoWhite step stool w/storage490970403046 or 180970208597June 2009-Feb 2010 Feb. 2010-Oct 2010CircoNatural step stool w/storage490970403053 or 180970208610June 2009-Feb 2010 Feb. 2010-Oct 2010CircoNatural & red step stool w/storage490970403060 or 180970208665June 2009-Feb 2010 Feb. 2010-Oct 2010Do Your Room (DYR)Natural step stool w/storage097168014338Jan. 2007-Aug. 2009Do Your Room (DYR)Honey step stool w/storage390970402622Jan. 2007-Aug. 2009Do Your Room (DYR)White859090000076 or 490970401394Jan. 2007-Aug. 2009Do Your Room (DYR)Pink801116004445Jan. 2007-Aug. 2009Do Your Room (DYR)Blue801116004438Jan. 2007-Aug. 2009

Sold exclusively at: Target stores nationwide and online at Target.com from January 2007 through October 2010 for between $25 and $30.

Manufactured in: China, Vietnam, Taiwan and Thailand

Remedy: Consumers should immediately stop using the step stools and return them to any Target store to receive a full refund.

Consumer Contact: For additional information, contact Target at (800) 440-0680 between 7 a.m. and 6 p.m. CT Monday through Friday, or visit the firm’s website at www.target.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml11/11311.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter because of injuries by a household product.  I’ll be happy to see if I can give you a hand.

The Supervision Requirement For Executive/Management Overtime Exemptions

Many employers classify employees as “exempt managerial” for overtime purposes without actually having the employees do any managing. In order to qualify as an “exempt executive employee,” an employee needs to have a number of different characteristics that, in general, require the
employee to actually manage and not just be a glorified clerk or cashier with an impressive-sounding title (like “store manager”).  One such requirement is that the employee’s primary duty must be management.  That’s a complicated topic that we’ll leave for another time.  There’s a related requirement though – To be exempt, a managerial employee must “customarily and regularly direct the work of two or more other employees,” i.e., actually manage and supervise people.

Some employers don’t bother to give their management employees anyone to actually manage or supervise.  Without that supervisory role, the employee cannot be considered an exempt executive and should be paid overtime.

“Customarily and regularly” means a frequency greater than occasional.  The two-or-more employees requirement can be met by supervising two full-time employees or their equivalent, as long as the supervisory time is eighty hours or more.  Under various circumstances less than eighty hours of employee supervision may be sufficient, but those circumstances are rare and eighty hours is the recognized standard.

Small businesses or chain convenience stores/gas stations that don’t usually have many employees onsite at a given time pose an interesting problem under the supervision test.  What if a location usually has only one manager and one employee on hand at a time?  Does the manager have to physically supervise two employees for the full eighty hours?  Or does the manager’s remote supervision or post-shift review of
employees’ work count towards the eighty hours even though the manger and the employee may not be simultaneously at the location?  The answer to that question will really depend on the circumstances of each case.  I think that, looking at the issue as a continuum, at least as far as
store managers are concerned the less time they spend actually working with and supervising employees the more likely they are to be considered nonexempt employees and thus entitled to overtime.

I can help you with any overtime law  questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

The Role Of Civil Rights Investigators

Yesterday the Associated Press reported that Iowa had fired three civil rights investigators for inappropriate e-mails:

http://www.desmoinesregister.com/article/20110823/NEWS10/308230027/Iowa-fires-3-civil-rights-investigators-for-emails

It’s a shame that this conduct happened while these employees were supposed to be doing their jobs as civil rights investigators.  But what exactly are those jobs?  Where do the investigators fit in the civil rights process?

A civil rights claim begins with the filing of a civil rights complaint with the Iowa Civil Rights Commission.  You cannot sue in court for employment discrimination unless you first go through the civil rights complaint process with the Iowa Civil Rights Commission, the United States Equal Employment Opportunity Commission, or a local civil rights agency.

The Commission will preliminarily screen your complaint for jurisdictional purposes.   Assuming your complaint passes preliminary screening, you’ll be sent a packet of questionnaires to be completed and returned to the Commission.   The questionnaires will ask for basic background information and also for specifics on how you believe you were discriminated against.  The Commission will dismiss your civil rights complaint if you don’t answer the questionnaires.  You might still be able to file suit for discrimination in court, but your failure to cooperate with the civil rights complaint process by answering the questionnaires may cause the court to dismiss your lawsuit.

The Commission will review your questionnaire answers, and anything submitted by the target of your complaint, to determine whether your complaint should be assigned for further investigation or whether it should be dropped.  If your complaint is closed by the Commission at this point you’ll have the right to file suit for discrimination.  If the Commission decides that your complaint warrants further investigation, you have the right to allow that investigation or file suit for investigation.

The civil rights investigators mentioned in yesterday’s AP article conduct a further investigation if that’s the route you choose to go.  The further investigation is a more in-depth look at the allegations and evidence you have.  In essence, the civil rights investigators almost act like private investigators.  A major part of their job, which only occurs during the investigation process, is interviews, including one of you.

I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Recovery Of Attorney Fees And Litigation Expenses

Some of the clients that I defend in court ask whether, if we’re successful, they can recover attorney fees and expenses.  The answer is usually not.  The parties to a personal injury or wrongful death claim, motor vehicle accident claim, dog bite claim, defective product claim, construction defect claim, nuisance claim, or insurance law claim generally are responsible for their own attorney fees and expenses.

The general rule is that parties to a lawsuit are responsible for their own fees and expenses.  One exception to that rule is when there’s a contract between the parties that states that the loser has to cover attorney fees and expenses if litigation occurs between the parties.  Those contracts are rare though.  Without one, it’s extremely difficult to recover attorney fees and expenses.

If a lawsuit is so lacking in facts or law to support it, you may be able to convince the judge to “sanction” the parties and lawyers who filed the suit.  Sanctions can include an order that the opposing parties or their lawyers, or both, have to reimburse you for the attorney fees and expenses that you incurred defending the frivolous action.  Judges don’t often sanction parties because there’s usually enough legal or factual support to justify the lawsuit that sanctions are deemed inappropriate.  The mere fact that you win the case does not by itself mean that the suit was frivolous.

There are also two legal claims available that you can bring against the opposing parties and their lawyers: malicious prosecution and abuse of process.  Again though, I have to state that these claims almost always fail because they’re very difficult to prove.

For malicious prosecution you have to prove that  you were the target of a previous lawsuit filed by the opposing party, that you won that lawsuit, that the lawsuit had no factual or legal merit, and that the opposing party acted maliciously in filing the lawsuit.  Abuse of process is slightly different and, as the name suggests, focuses on the use of the courts for an improper or unauthorized purpose with an impermissible or illegal motive.

If you have been sued under a statute, that law may require the plaintiff to cover attorney fees and expenses if you win.  An example of such a statute is Iowa’s Landlord and Tenant Act.

I can help you with any business or contract matters that may arise in which you believe that you were the target of a wrongful suit and wish to try to recover your attorneys and expenses incurred in defending that suit.  Please jurt give me a call.

More Problems With Martha Stewart Products

Last week the Des Moines Register reported on several settlements that had recently been reached in personal injury lawsuits regarding Martha Stewart chairs.  Here’s a link to that article:

http://www.desmoinesregister.com/article/20110811/NEWS01/110811017/3-settle-injury-lawsuits-over-Martha-Stewart-chair

Now it appears that other Martha Stewart products are a potential danger to consumers.  Yesterday the U.S. Consumer Products Safety Commission announced that Martha Stewart is recalling cast iron casseroles because of the risk that the casseroles can crack or break:

WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Martha Stewart Collection™ Enamel Cast Iron Casseroles

Units: About 960,000

Importer: Macy’s Merchandising Group, New York, N.Y.

Hazard: The enamel coating on the cast iron casseroles can crack or
break during use. This can cause the enamel to crack and fly off as a
projectile, posing a risk of laceration or burn hazard to the user or
bystanders.

Incidents/Injuries: Macy’s has received two reports of the enamel
cracking and flying off of the casseroles during use. No injuries have been
reported.

Description: The recall involves Martha Stewart Collection™ Enamel
Cast Iron Casseroles in 7 quart, 5.5 quart and 2.75 quart sizes, with exterior
enamel finishes in red, cobalt blue, sand, green, blue, white, mustard, brown
and teal, with cream colored interior finishes. The casseroles are embossed with
Martha Stewart Collection™ on the bottom and lid handle.

Sold at: Macy’s stores and AAFES, MCX and NEX locations nationwide,
and on macys.com between June 2007 and June 2011 for between about $25 and
$170.

Manufactured in: China

Remedy: Consumers should immediately stop using the casseroles and
return them to any Macy’s store for a full refund.

Consumer Contact: For additional information, contact Macy’s toll-free
at (888) 257-5949 between 10 a.m. and 10 p.m. ET or visit the Macy’s website at
www.macys.com

Source: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11308.html

Like the Martha Stewart chairs, these casseroles pose a danger of physical injuries to consumers.   Please feel free to contact me if you have a personal injury or wrongful death or products liability matter because of injuries by a household product.  I’ll be happy to see if I can give you a hand.

State Asks Court To Refuse Class Action Status Of Race Discrimination Lawsuit

Last week the Des Moines Register reported that the State of Iowa has asked a judge to deny class action treatment of a lawsuit that alleges that the state engages in discriminatory practices.  Here’s a link to the story:

http://blogs.desmoinesregister.com/dmr/index.php/2011/08/12/iowa-racial-discrimination-case-not-specific-enough-to-go-to-trial-state-argues/

The potential class action alleges that the state practices race discrimination in its employment decisions.  A class action allows a few plaintiffs to prosecute a lawsuit on behalf of many others who are in a similar position.  That eliminates the need to have hundreds, thousands, or, in rare instances, millions of individual claims tying up the courts.

Judges have the discretion to refuse to allow a lawsuit to proceed as a class action.  Last week, the State of Iowa argued to the Polk County judge presiding over the case that a new United States Supreme Court decision, Duke v. Walmart, which was decided in June, invalidates the employment discrimination class action against the state.

The Duke v. Walmart class action collapsed because the plaintiffs could not prove a necessary aspect of a class action, i.e., that everyone’s claims were common with the others.  As Justice Scalia wrote, “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”  The Duke class action plaintiffs had to prove, and could not, “that Wal-Mart ‘operated under a general policy of discrimination.’ ”  Ultimately, the Duke plaintiffs could establish nothing more than that they were all women who worked for Walmart.  The Supreme Court concluded that those facts were insufficient to justify a class action: “Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question” necessary to justify a class action.

Here’s a link to the full United States Supreme Court decision in Duke: http://www.supremecourt.gov/opinions/10pdf/10-277.pdf

The State of Iowa now argues that the same deficiencies that sank the Walmart class action are also fatal to the case against Iowa because the plaintiffs cannot identify a common policy or practice that resulted in discrimination.  The Polk County judge is currently considering the state’s arguments.  As of today, the judge hasn’t ruled, but he has advised the state and the plaintiffs to prepare for trial just the same.

This will be an interesting decision, regardless of which way the judge rules.  The judge’s ruling will almost certainly be appealed to the Iowa Supreme Court.  Since the plaintiffs have asserted a violation of federal civil rights law, it is also possible for additional appeals to the United States Supreme Court after the Iowa Supreme Court weighs in on the dispute.  Could an Iowa state court class action against the State of Iowa be the United States Supreme Court’s next opportunity to consider these issues?

I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Salmonella-Contaminated Ground Turkey

Recently Cargill and the U.S. Department of Agriculture announced a recall of around 18,000 tons of contaminated ground turkey after receiving reports of people becoming ill after consuming some of it. So far, one person has died due to salmonella poisoning from eating the ground turkey.  The strain of salmonella found in the turkey appears to be resistant to treatment with antibiotics.

The turkey was produced at Cargill’s Arkansas plant and distributed to 31
states.  Though the recall was not announced until Aug. 3, reports of consumers becoming ill have been coming in since early March, just a couple weeks after the turkey included in the recall was first produced.

The meat was produced between Feb. 20 and Aug. 2. It was packaged with a
number of labels, such as Honeysuckle White, Fresh Lean HEB, and Giant Eagle, and was sold both fresh and frozen. The USDA said it is safe to eat the contaminated meat as long as consumers cook the meat to at least 165 degrees and wash their hands for 20 seconds before and after handling it.

Ot seems that the federal government was aware of possible meat contamination several days before the recall was announced. According to Tom Vilsack, the USDA secretary, inspectors from the Centers for Disease Control and Prevention had found salmonella in samples of the meat and traced the problem to Cargill’s processing plant in Arkansas as early as the first week of June. Vilsack said the recall did not begin until August because there was not enough evidence to order one until then.

Source: CBS News, “Cargill recalls ground turkey over salmonella fears,” Ryan Jaslow, Aug. 4, 2011

Source: U.S. News and World Report, “Salmonella Outbreak Linked to Turkey Sickens More People,” Steven Reinberg, Aug. 11, 2011

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter because of contaminated meat.  I’ll be happy to see if I can give you a hand.

Time Limits For Filing Uninsured/Underinsured Motorist Claims

In an earlier post I wrote about uninsured and underinsured motorist coverage.  This type of insurance may be used in motorcycle crashes or car accidents that cause personal injury or wrongful death.  But what are the time limits for filing such a claim?  They can be as much as ten years, although your insurance policy (which is also a contract) may create a shorter filing period.

The insurance contract may alter the standard ten-year time limit as long as the altered period is reasonable and clearly set forth in the policy.  The contractual limitation period’s reasonableness is determined in light of the provisions of the contract and the particular circumstances of its performance and enforcement.  Thus, although a limitations period may be reasonable and enforceable when applied to one policyholder, the same time limit may be unreasonable and unenforceable when applied to a different policyholder under different circumstances.  Any contractual limitations provision that requires a plaintiff to bring the action before the person’s loss or damages can be determined is per se unreasonable.   A two-year time limit is common and frequently upheld by Iowa courts.

If you don’t file your uninsured or underinsured motorist within the policy’s time limits, and the court upholds those time limits, then your uninsured or underinsured rights are forfeited and the court will dismiss your case.  So it is very important that you be familiar with your insurance policy and any time limits for bringing a claim.  Generally you’re assumed to have read and understood your insurance policy, so failure to read it or all of its provisions is normally not an excuse. 

Uninsured and underinsured motorist insurance claims are complicated matters that blend insurance law, contract law, and personal injury law in a unique way.  To fully determine your legal rights you have to analyze your insurance policy, state statutory law, and state court law and apply all of that to the circumstances of your accident.  That is not something that you should not undertake without an attorney.  Please contact me if you have a question about insurance law or personal injury law.

Watch Out For Sun Glare While Driving

Yesterday’s Des Moines Register included a warning about the direct east-west sun glare that occurs at this time of the year and in April:

“A Des Moines driver was westbound on Grand Avenue in Des Moines last week when she made a turn onto Fifth Avenue and struck a bicyclist.

Carolynn Guay, 50, of Des Moines, told police the sun was in her eyes and she did not see bicyclist Zachary Rose, 20, of Des Moines. He was not seriously injured.

This is the time of year when the sun’s glare is particularly dangerous for drivers, pedestrians and bicyclists.

The danger exists a few weeks before and after September 4 when the early morning and late afternoon sun is lining up with Iowa’s east-west streets.

The danger also exists in the spring a few weeks before and after April 6.

Guay was in the 400 block of Grand Avenue about 5 p.m. Wednesday, turning right onto Fifth Avenue when the accident occurred, police said. Rose was hit while in the crosswalk.

Guay was traveling at a low speed, police said. She was charged with failure to yield.

Fire department medics treated Rose at the scene. They did not take him to a hospital.

Tips

Wear sunglasses

Keep windshield clean inside and outside

Use visor

Delay driving until sun is not a factor”

Source:  http://www.desmoinesregister.com/article/20110808/NEWS/110808005/Drivers-beware-It-s-glare-season

The Register article omitted a very important safety measure — Vehicles and bicycles traveling away from the sun and towards traffic facing the glare should have headlights on to help the drivers on the opposite side see them through the sun’s glare.

On an editorial note, I ‘m glad that the driver mentioned in the article was cited for this accident.  Drivers whose view is obstructed or who can’t see for some reason still have an obligation to make sure it’s safe to turn before doing so.  Sun glare is not an excuse and the cyclist is lucky that he wasn’t seriously injured by this vehicle.  The same is true for any acts of nature (sun, rain, fog, snow, ice, etc.) that may affect driving ability.   Drivers are required to drive in a manner that is safe under the conditions.  That means if a driver is blinded by the sun the driver must take extra time to ensure that it is clear and safe to turn before doing so.  By the same token, it’s hard to see at night too, which is why everyone should be more careful when driving in the dark.

Please feel free to contact me if you have a motorcycle crash, car accident or other personal injury or wrongful death matter you would like to discuss.

Iowa Supreme Court Upholds 127 Year-Old Rule That Estates Are Not Responsible For Punitive Damages

The Iowa Supreme Court issued a decision today that again addressed the question of whether an estate is liable for punitive damages based on actions of the deceased that occurred before death.  This ruling could apply to a personal injury or wrongful death suit, motor vehicle accident claim, dog bite claim, construction defect claim, business practices or contract law claim, or insurance law claim.

The case is In The Matter of the Estate of Johnny Vajgrt.  Here’s the link to the decision: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20110805/10-1088.pdf

Iowa hasn’t allowed punitive damages claims against estates since 1884.  That rule is premised on the idea that, since punitive damages are intended to punish, they serve no purpose once the person to be punished is dead.  Only compensatory damages can be recovered against an estate.

A dissent was offered by Justice Hecht.  I agree with his position that, since punitive damages are also intended to deter other people from engaging in the same or similar conduct, foreclosing punitive damages just because someone has died makes no sense.  That person may no longer care about being punished, but a punitive damages award against that person’s estate may serve as a warning to others.