Walmart Baby Formula Recall

Walmart removed a batch of baby formula from its shelves this week after the death of a Missouri infant.  Walmart began the process of voluntarily removing the product — Enfamil Newborn in a 12.5-ounce can with lot number ZP1K7G — from more than 3,000 U.S. stores late Monday night, December 19, 2011, as a safety precaution.  There will now be an investigation by health officials at the Centers for Disease Control and Prevention and the U.S. Food and Drug Administration.

The newborn died after he was taken to the hospital for appearing lethargic and displaying signs of a stomach ache.  The infant tested positive for Cronobacter, a bacteria that has sometimes been linked to rare illnesses in newborns. Although the bacteria has sometimes been found in infant formula, Missouri health officials said it cannot yet be determined whether or not the illness is linked to the Enfamil formula or an outside source.

Mead Johnson Nutrition makes the Enfamil brand formula and could be liable to the Missouri child and the family if it is determined that there was something wrong with the baby formula.  But, unless Walmart failed to properly store or handle the baby formula, it’ll be difficult to assert any liability against it.  Retailers, unlike manufacturers, are not always exposed to potential liability when a product you buy from the retailer causes harm.  Of course, it’s also possible that the family did not follow the formula’s preparation and handling instructions, in which case there may be an issue of whether Mead Johnson Nutrition provided appropriate instructions and warnings for Enfamil.

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

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Use Of Restraint Devices To Control Prisoners

Law enforcement or jail officials sometimes use restraint devices to control prisoners.  Restraint devices can include chairs and beds with straps to immobilize the prisoner.  The use of a restraint device, if done improperly or for improper reasons, can cause personal injuries or wrongful death and lead to civil liability for the officials and facility.

Restraint devices can cause harm or death to the prisoner.   But even when they restraint devices don’t lead to such serious results, civil liability can still be imposed for the physical pain or discomfort caused by the restraint device and the resulting mental fear of being held down.

Iowa law provides only three situations when four- and fivepoint restraints can be used: When the inmate is (1) a threat to self, (2) a threat to others, or (3) a jeopardy to security.  Restraint devices are not proper when only minor damage to a cell has occurred, the inmate posed no other threat to jail staff other than verbal abuse, or when the immediate threat to safety or security had already passed.  Iowa law states that restraints can only be used for the amount of time necessary to alleviate the condition causing the restraint.

Restraint devices must only be used when the inmate is an immediate and ongoing threat to themselves or others, or is jeopardizing jail security.  Restraint devices cannot be used merely to punish a prisoner.

Iowa law requires 15-minute personal visual observation of the inmate and the restraint application.  That should include an examination of the prisoner’s well-being but also the effect of the restraints on the prisoner.

If you have been subjected to a restraint device while jailed or imprisoned and believe that the use of the device was improper, please feel free to contact me to see whether you have a claim for a civil rights violation.

Arctic Cat Snowmobile Recall

The U.S. Consumer Products Safety Commission has announced a voluntary recall of Artic Cat Snowmobiles:

Name of Product: Arctic Cat Snowmobiles

Units: About 7,100

Manufacturer: Arctic Cat Inc., of Thief River Falls, Minn.

Hazard: The headlamp fuse can fail, disorienting the operator during periods of limited visibility and posing a crash hazard.

Incidents/Injuries: Arctic Cat discovered this condition during production testing of these models. There have been no reports of headlamp failures or injuries.

Description: The recall involves the following 2012 F, XF, and M model snowmobiles:

Model Model Name/Number
F F800 LXR, F1100 LXR, F800 Sno Pro, F1100 Sno Pro/Limited/50th
XF XF800 LXR, XF1100 LXR, XF800 Sno Pro High Country, XF1100 Limited/50th
M M800, M1100, M800 Sno Pro, M1100 Sno Pro/Limited/50th, M800 HCR

Recalled snowmobiles can be identified by the last six numerals of the Vehicle Identification Number (VIN) in the following ranges: 105092 through 112175 or 800001 through 800033. The model name is located on each side of the hood. The VIN is located on the right side tunnel. The snowmobiles come in a variety of color combinations: Black, White and Orange, Black and Orange, and Black and Green.

Sold at: Arctic Cat dealerships nationwide from May 2011 through September 2011 for approximately $10,500 to $13,000.

Manufactured in: United States

Remedy: Consumers should immediately stop using these snowmobiles and contact their local Arctic Cat snowmobile dealer to schedule a free repair. Arctic Cat has notified owners of these snowmobiles directly by mail.

Consumer Contact: For additional information, call Arctic Cat at (800) 279-6851 between 8 a.m. and 5 p.m. CT Monday through Friday or visit the firm’s website at www.arctic-cat.com

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Turn Signal Requirements

In an earlier post I discussed Iowa’s statutory law regarding headlight use.  This time I’d like to discuss when the use of turn signals is required.  The law actually gives drivers a lot of leeway on turn signal use to the point that turn signals may almost be always optional.  But for safety concerns, especially for vehicles traveling behind you, there doesn’t seem to be any good reason to not use your turn signals, even when the law doesn’t mandate it.
Here are the Iowa Code sections that govern turn signal use:
Iowa Code 321.314  When signal required:
“No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.” (emphasis added).
Iowa Code 321.315  Signal continuous:
“A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning when the speed limit is forty-five miles per hour or less and a continuous signal during not less than the last three hundred feet when the speed limit is in excess of forty-five miles per hour.”
The highlighted portion of Iowa Code 321.314 provides the leeway I mentioned.  Under section 321.314 drivers are only required to use turn signals when another vehicle may be affected by the turn.  That interpretation of 321.314 has been accepted by Iowa’s appellate courts on several occasions.  So, if you don’t believe that your turn will affect another vehicle, you have no legal obligation to signal.
Interestingly, although signaling a lane change is a common driving tactic taught by probably every driving instructor in Iowa, that’s not actually required by the Iowa Code.  In a 2009 decision (http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20090917/9-647.pdf) the Iowa Court of Appeals noted that Iowa does not seem to legally require the use of turn signals during land changes.  It’s just one of those things you do so other drivers have a clue about where you’re going and don’t crash into you when your vehicle suddenly appears in their lane without warning.
As I said, signaling your turns is always something you should do for safety reasons even if you technically don’t have to.  The Iowa Department of Transportation offers the following driving tips on turn signal use.  Most of IDOT’s tips won’t be found in the Iowa Code.  Rather, they’re just good, common sense tips meant to help keep everyone safe:
“Turn signals give other drivers time to react to your moves.  You should use your turn signals before you change lanes, turn right or left, merge into traffic, or park.
• Get into the habit of signaling every time you change direction. Signal even when you do not see anyone else around. It is easy to miss someone who needs to know what you are doing.
• Signal as early as you can. Try and signal at least three seconds before you make your move. You must signal at least 100 feet before a turn if the speed limit is 45 mph or less. If the speed limit is faster than 45 mph, you must signal at least 300 feet before you turn.
• Be careful that you do not signal too early. If there are streets, driveways or entrances between you and where you want to turn, wait until you have passed them to signal.
• If another vehicle is about to enter the street between you and where you plan to turn, wait until you have passed it to signal your turn. If you signal earlier, the other driver may think you plan to turn where that driver is and he/she might pull into your path.
• After you have made a turn or lane change, make sure your turn signal is off. After short turns, the signals may not turn off by themselves. Turn it off if it has not canceled by itself. If you do not, other drivers might think you plan to turn again.
A quick word about civil liability for personal injuries or wrongful death.  If you cause a car accident or motorcycle crash because you violate the Iowa Code’s rules for motor vehicles, especially if you’re found guilty or plead guilty to a citation, you’ll almost certainly be held liable for the accident.  But the Iowa Code merely provides a minimum standard of conduct; civil negligence law can require you to do more than the Iowa Code requires if it’s reasonable to expect you to do so.  Turn signal use is a good example of that — There’s many things you should do with your turn signals (as advised by IDOT) that the Iowa Code doesn’t actually require you to do.  Regardless, you may still be civilly liable for causing an accident if a court or  jury determines that you reasonably should have done more, such as signal a lane change, than the Iowa Code expressly requires.

You Never Have A “Right” To Resist Arrest

In this new era of protesters “occupying” public space all over cities and then getting arrested for various minor offenses, I though it’d be useful to discuss citizens’ rights to resist what they believe to be an unlawful arrest.  That’s actually pretty easy — There is no such right.  The idea that people have a right to “passively” or “peacefully” or, worse yet, physically resist law enforcement is a myth, at least in Iowa.

If a law enforcement officer tells you to do something, you have to do it, or else you’re committing a crime, no matter how much you believe that the officer lacks authority or is acting unlawfully.  And Iowa Code 804.12 specifically criminalizes resistance to any arrest regardless of how unlawful you may think that arrest is:  “A person is not authorized to use force to resist an arrest, either of the person’s self, or another which the person knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if the person believes that the arrest is unlawful or the arrest is in fact unlawful.”

A number of Iowa appellate court decisions have said basically the same thing.  For example, in the 1997 decision in State v. Brecunier, the Iowa Supreme Court noted that the defendant “incorrectly believed the right to resist the police was reposed in him, when in fact the law gives the officer the right to make an arrest based on probable cause. . . .”

There are two primary reasons for this law.  First, officers’ safety is a paramount consideration.  People always think that their arrests are unfair or unlawful; if citizens then had a right to duke it out with law enforcement every time they held that belief then a lot of officers and citizens would be hurt.  Second, the streets are not the time or place for a debate on the legality of an arrest or whether the arrestee has committed a crime.  Those are matters to be determined in courtrooms by judges and juries.

Resisting an officer’s commands or attempt to arrest you can actually lead to legitimate criminal charges against you, even if the officer’s commands were unlawful or there initially was no probable cause to arrest you.  Because disregarding law enforcement commands or resisting arrest are crimes under any circumstances, resistance to even an unlawful arrest gives police probable cause to arrest you for resisting arrest, which means you can resist yourself into a jail cell even if you otherwise would have gone free had you not resisted the original attempt to arrest you.

Please feel free to contact me if you have a police matter that you’d like to discuss involving a personal injury or wrongful death claim for you or a family member.  I’d be happy to see if I can give you a hand.

Feds Reiterate Bumbo Baby Seat Warning

The U.S. Consumer Product Safety Commission is reiterating earlier warnings about Bumbo Baby Seats:

“Due to the serious risk of injury to babies, CPSC and Bumbo International Trust of South Africa (“Bumbo International”) are urging parents and caregivers to never place Bumbo Baby Seats on tables, countertops, chairs or other raised surfaces. Infants aged 3-10 months old have fallen out of the Bumbo seat and suffered skull fractures and other injuries.

CPSC and Bumbo International are aware of at least 45 incidents in which infants fell out of a Bumbo seat while it was being used on an elevated surface which occurred after an October 25, 2007 voluntary recall of the product. The recall required that new warnings be placed on the seat to deter elevated usage of the product. Since the recall, CPSC and Bumbo International have learned that 17 of those infants, ages 3-10 months, suffered skull fractures. These incidents and injuries involved both recalled Bumbo seats and Bumbo seats sold after the recall with the additional on-product warnings.

CPSC and Bumbo International are also aware of an additional 50 reports of infants falling or maneuvering out of Bumbo seats used on the floor and at unknown elevations. These incidents include two reports of skull fractures and one report of a concussion that occurred when babies fell out of Bumbo seats used on the floor. These injuries reportedly occurred when the infants struck their heads on hard flooring, or in one case, on a nearby toy.

The Bumbo seat is labeled and marketed to help infants sit in an upright position as soon as they can support their head. The product warnings state that the seat “may not prevent release of your baby in the event of vigorous movement.” Infants as young as 3 months can fall or escape from the seat by arching backward, leaning forward or sideways or rocking.

At the time of the 2007 recall announcement, CPSC was aware of 28 falls from the product, three of which resulted in skull fractures to infants who fell or maneuvered out of the product used on an elevated surface. CPSC and Bumbo International are now aware of at least 46 falls from Bumbo seats used on elevated surfaces that occurred prior to the 2007 recall, resulting in 14 skull fractures, two concussions and one incident of a broken limb.”

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12047.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.