New Federal Standards For Children’s Bed Rails

The U.S. Consumer Product Safety Commission (CPSC) recently voted (4-0) to adopt a new federal standard to make portable bed rails safer for children. A portable bed rail is used on the side of an adult bed to keep children, typically age 2 to 5 years old, from falling out of the bed.

The mandatory standard contains safety requirements for bed rails and addresses consumer assembly and installation problems that have resulted in child deaths. CPSC staff worked closely with the standards development organization ASTM International to update its consensus standard. CPSC’s new mandatory standard incorporates ASTM’s bed rail standard F2085-12.

The federal standard for portable bed rails includes the following requirements:

• Portable bed rails must not create a dangerous gap with the mattress into which a child can fall.
• They must be tested to make sure the bed rail hardware is permanently attached, and that the components cannot be assembled in an unsafe manner.
• Bed rails must have improved warnings on labels and instructions.
• Installation components, such as anchor or straps, must be permanently attached to the bed rail. These component parts also must have a warning label on them.
• Bed rails must not have hazardous sharp edges, points or small parts.

The improved warnings explicitly state that bed rails should never be used with children younger than two years old. They are intended for children age 2 to 5 who can get out of an adult bed without help. Gaps in and around bed rails have entrapped young children and killed infants.

The federal standard will go into effect six months after publication of the final rule in the Federal Register.

In addition to portable bed rails, the Commission has approved mandatory standards for other children’s products, including cribs, bath seats, baby walkers and toddler beds, as required by Congress in Section 104 of the Consumer Product Safety Improvement Act of 2008.

Source: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12114.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.

Where Did All The Honesty Go?

The Des Moines Register recently reported two stories involving fraud against consumers.  One concerns an Iowan who was apparently selling fake sports tickets and pocketing money for tickets that didn’t exist.  The other is about a Missouri man who thought he bought a Harley-Davidson edition Ford truck from an Iowa dealer, only to later find out that the truck was not a special edition Harley truck, but rather just a Ford truck with some Harley-Davidson stuff on it.  Here’s links to both stories:

http://blogs.desmoinesregister.com/dmr/index.php/2012/02/06/update-iowa-ag-looking-at-claims-of-fraudulent-super-bowl-tickets/

http://www.desmoinesregister.com/article/20120212/NEWS/302120083/Reader-s-Watchdog-Buyer-fake-Harley-edition-truck-alleges-deception-by-dealer

One victim of the alleged fake sports tickets scam has already sued.  There’s no word on whether the Harley-Davidson matter will result in a lawsuit.  But in both cases, particularly the sports ticket matter, an issue will be whether the buyers should have known better, sort of an “if it’s too good to be true” argument.

Comments have already been made about the claimed sports ticket victim along the lines of “did he really believe that he was getting hundreds of thousands of dollars worth of tickets for less than two hundred thousand?”  To those commentators I say how does that excuse the alleged scammer’s conduct, if in fact there was a scam?  Do we need to triple-check every good deal we come across, and if it turns out to be too good to be true and we get burned, we’re stuck because we took someone else at their word?  Whatever happened to the concepts of trust and people giving their word and backing it up?

If the commentators are correct, then in theory the bigger your scam, and the less believable it is, the more likely you are to get away with it.  It just seems odd to me that people would want to punish the victim who took someone else at their word, rather than the cheater who stole the victim’s money.  Of course, if something like that ever happened to the commentators, they’d be calling the authorities, the media, lawyers, and anyone else who’d listen screaming about the injustice of it all.

Unfortunately, there is some legal basis in fraud cases for the “should have known better” argument.  In fraud cases the victim/plaintiff has to prove “justifiable reliance” on what the victim claims were the fraudulent statements about the product.  Under Iowa law, whether reliance is justified depends on what the plaintiff can reasonably be expected to do in light of the plaintiff’s own information and intelligence.  Reliance is not justified if the representation is of an unimportant fact or is obviously false.

Further, and this is pertinent to the Harley-Davidson truck dispute, people are presumed to be able to form their own opinion about the quality or value of ordinary merchandise or the wisdom of entering into a routine transaction.  A buyer of ordinary merchandise is not justified in relying upon the seller’s “puffing,” “sales talk,” or other general opinion of quality or value.  A buyer may be justified in relying upon a statement that the merchandise is satisfactory for the buyer’s announced purpose.

In the end, I guess you just have to be careful and, to the extent possible, exercise due diligence before buying something.  Investigate, inspect, research the product and the buyer if you have any concerns.  And, if you think you have an issue with fraudulent conduct, feel free to give me a call to see if I can help out,

When Do You Have A Legal Duty Assist Others?

The Des Moines Register recently ran a story on Chad Naumann, who died on the floor of an Urbandale hotel room after consuming a mixture of drugs and alcohol.  The story was about the fact that other people were in that hotel room and basically allowed Chad to die.  In fact, witnesses told police that the man who lived in that hotel room actually instructed that no one should call 911.  Here’s a link to the story:

http://www.desmoinesregister.com/article/20120122/NEWS/301220045/Rood-Chad-Nauman-lay-dying-no-one-helped-him

The general rule under Iowa’s civil law is that there is no duty to render aid to another, no matter how helpless or endangered that person might be.  But in limited circumstances negligence law imposes a duty to assist another, for example, after a motorcycle crash, dog attack or a car accident.  Those circumstances usually involve some action on your part towards the endangered person, like creating the dangerous situation or condition or inadequately rendering or discontinuing aid once you’ve voluntarily begun to help.  Failure to render aid when legally required to do so can lead to liability for personal injuries or wrongful death.  Most of the time though, if you’re not a cause of the person’s trouble and take no steps to help that person, you owe them nothing and can leave them to fend for themselves.

The Iowa Supreme Court extensively discussed this exact question in the 2000 case of Garofalo v. Lambda Chi Alpha Fraternity.  That lawsuit involved a fraternity member, Matt Garofalo, at the University of Iowa who died after excessive alcohol consumption.  Garofalo’s family sued the fraternity organization and the students the family believed allowed their son to die.

The trial dismissed most of the defendants because it determined that none of them had an obligation to protect Garofalo.  Some of the students were accused of failing to care for Garofalo once he became intoxicated, helpless, and unable to adequately protect himself, especially after he was unconscious and lying on a couch.

In concluding that the other students, with the exception of one, owed Garofalo no duty of care, the Iowa Supreme Court stated that there is no general duty to take charge of persons who are helpless and cannot adequately aid or protect themselves.  In other words, the students who did not contribute to Garofalo’s intoxicated condition, did not make his situation any worse, and did nothing to try to care for him were not legally obligated to assist him in any manner.  But once aid is attempted, even if you have no initial duty to assist, you have to use reasonable care for the safety of the other person and cannot discontinue the aid or protection if it will leave the other person in a worse position than when you began to help.

So if you come upon a car crash and see bodies lying on the side of the road, you have no obligation to stop and help and can just keep on going.  But if you do stop to lend assistance, you’ve assumed a duty to help and protect those people lying on the side of the road.  Now, once you’ve stopped and tried to help, that implicates another legal doctrine, the “good samaritan” law, that provides protection for injuries you cause while trying to render aid, for example while performing CPR.  I’ll discuss that topic another time.

Interestingly, the trial court in the Garofalo case did not dismiss a claim against a student, Chad Diehl, for failing to help.  Diehl furnished alcohol to Garofalo in violation of state law (Garofalo was underage) and there were questions about Diehl’s conduct once Garofalo became intoxicated and passed out.  Diehl did the most to check on and monitor Garfalo.  By doing so, he arguably “took charge” of Garofalo and assumed responsibility for Garofalo’s safety.  Diehl also contributed to Garfalo’s dangerous situation by illegally giving him alcohol.  For those reasons the trial court ruled that the jury would have to decide whether Diehl was negligent in his care of Garofalo.

Office Equipment Recalls

The U.S. Consumer Productes Safety Commission has recently announced the recalls of Hewlett-Packard fax machines and Konica Minolta printers.  Both types of products are believed to pose fire hazards.

Name of Product: HP fax 1040 and 1050 machines

Units: About 928,000 in the U.S. and 240,000 in Canada and Mexico

Importer: Hewlett-Packard Co., of Palo Alto, Calif.

Hazard: The fax machines can overheat due to an internal electrical component failure, posing fire and burn hazards.

Incidents/Injuries: Hewlett-Packard is aware of seven reports of fax machines overheating and catching fire, resulting in property damage, including one instance of significant property damage and one instance of a minor burn injury to a consumer’s finger. Six incidents were reported in the U.S. and one in Canada.

Description: This recall involves HP Fax 1040 and 1050 models. The HP logo and the model number are printed on the front of the fax machine. The fax machines are dark gray and measure about 11 inches high x 14 1/2 inches wide.

Sold at: Electronics, computer and camera stores nationwide, and online at http://www.shopping.hp.com and other websites from November 2004 through December 2011 for between $90 and $120. Some of the recalled fax machines were replacement units for a previous recall involving HP fax model 1010 in June 2008.

Manufactured in: China

Remedy: Consumers should immediately stop using the recalled fax machines, disconnect them from the electrical outlet and contact HP for a rebate on the purchase of an authorized replacement HP fax machine or a partial rebate of certain HP ink jet printers.

Consumer Contact: For additional information, contact HP toll-free at (888) 654-9296  between 6 a.m. and 6 p.m. MT Monday through Friday, or visit the firm’s website at http://www.hp.com/go/faxrecall/US-en

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12101.html

Name of Product: Konica Minolta Printers

Units: About 8,430

Importer: Konica Minolta Business Solutions U.S.A. Inc., of Ramsey, N.J.

Hazard: The printers can short circuit and overheat during use, posing a fire hazard.

Incidents/Injuries: The firm is aware of two reports of the printers overheating. No injuries have been reported.

Description: This recall involves four desktop models of laser color printers: Magicolor 4750DN, Magicolor 3730DN, Bizhub C35 and Bizhub C35P. Model numbers are located on the plate attached to the side of the printer as well as the bottom of the front door. The printers are dark and light gray in color and have “Konica Minolta” printed on the top of the front door.

Sold at: Various value-added resellers, direct retail sales and authorized Konica Minolta dealers from June 2010 through March 2011 for between $900 and $3,500.

Manufactured in: China

Remedy: Consumers of Magicolor 3730DN and 4750DN should stop using the printers immediately and contact Konica Minolta to schedule a free replacement. Consumers of Bizhub C35 and C35P will be visited by an authorized service agent for repair and replacement of the faulty component.

Consumer Contact: For additional information, contact Konica Minolta toll-free at (800) 825-5664 (Press 5) between 8:00 a.m. and 8:00 p.m. ET, Monday through Friday, or visit the firm’s website at www.kmbs.konicaminolta.us

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12717.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.

Upcoming Federal Overtime Regulation Changes For Companionship And Live-In Workers

The DOL recently announced that it would be issuing proposed amended rules regarding companionship and live-in workers’ eligibility for overtime under the FLSA.  A preview of the announcement from the DOL’s website explains:

“While Congress expanded protections to “domestic service” workers in 1974, these Amendments also created a limited exemption from both the minimum wage and overtime pay requirements of the Act for casual babysitters and companions for the aged and infirm, and created an exemption from the overtime pay requirement only for live-in domestic workers.

Although the regulations governing exemptions have been substantially unchanged since they were promulgated in 1975, the in-home care industry has undergone a dramatic transformation. There has been a growing demand for long-term in-home care, and as a result the in-home care services industry has grown substantially. However, the earnings of in-home care employees remain among the lowest in the service industry, impeding efforts to improve both jobs and care. Moreover, the workers that are employed by in-home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption (i.e., neighbors performing elder sitting), but instead are professional caregivers entitled to FLSA protections. In view of these changes, the Department believes it is appropriate to reconsider whether the scope of the regulations are now too broad and not in harmony with Congressional intent.

Proposed Changes to the Companionship and Live-In Worker Regulations

On December 15, 2011 the Department announced that it will publish a Notice of Proposed Rulemaking (NPRM) to revise the companionship and live-in worker regulations for two important purposes:

• To more clearly define the tasks that may be performed by an exempt companion
• To limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.

Although the Office of Management and Budget (OMB) has reviewed and approved the attached Notice of Proposed Rulemaking (NPRM), the document has not yet been published in the Federal Register. The NPRM that appears in the Federal Register will specify the dates of the public comment period and may contain minor formatting differences in accordance with Office of the Federal Register publication requirements. The OMB-approved version is being provided as a convenience to the public and this website will be updated with the Federal Register’s published version when it becomes available.”

Among other things, the proposed rule would overrule a 2007 holding of the United States Supreme Court and require 3rd party employers such as staffing agencies to pay companions and home health workers overtime under the FLSA when they work in excess of 40 hours per week.

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.

Iowa Included In Recall Of Contaminated Eggs

The Des Moines Register has reported on a recall of listeria-contaminated eggs that includes eggs sold in Iowa:

“A Minnesota food company is widening its recall of hard-cooked eggs because of a potential for listeria contamination.

Michael Foods, of Minnetonka, is recalling eggs in brine sold in 10- and 25-pound pails for institutional use in 34 states. The eggs carry six brand names: Columbia Valley Farms, GFS, Glenview Farms, Papetti’s, Silverbrook and Wholesome Farms.

The U.S. Food and Drug Administration says the eggs were produced at Michael Foods’ plant in Wakefield, Neb., and were bought by food distributors and manufacturers. There have been no reports of illness connected to the eggs. But, the company says the eggs have the potential to be contaminated with a strain of listeria that can cause serious infections in those with weaker immune systems.”

Source: http://www.desmoinesregister.com/article/20120203/BUSINESS01/120203003/Iowa-included-on-list-of-egg-recall-states

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