Annual Rise In Summer ATV Deaths Prompts CPSC To Urge Safety On The Trails

A reminder/warning from the federal government about preventing products liability or personal injury or wrongful death accidents from occurring when using ATVs:

WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission (CPSC) is urging ATV riders to stay safe on the trails and make 2012 the year that curbs the annual rise in deaths and injuries seen every summer.

On average for 2004 to 2006, deaths of children aged 16 and younger rose about 65 percent from March to April. Adult deaths rose 85 percent over the same period. If riders are not vigilant about safety, reports of ATV-related deaths are expected to continue to rise through the summer, peaking in July.

On average, each year from 2004 to 2010, there were nearly 700 ATV-related fatalities and about 136,000 emergency-department treated injuries, many of which were life-altering.

Already this year, CPSC staff has received preliminary reports of 130 adults and 28 children under the age of 16 who died since January in ATV-related incidents around the country. As of June 1, at least 14 adults and three children were reported to have died from incidents occurring during the Memorial Day holiday weekend, May 25 to May 28.

Many deaths and injuries occur when an inexperienced driver loses control of an ATV, is thrown from an ATV, overturns the vehicle, or collides with a fixed object or a motor vehicle. ATV drivers with more than one year of experience have a much lower risk of injury than relatively new drivers.

Training can bridge that gap by showing new drivers how to handle multiple off-road riding situations. Retailers and organizations around the country offer hands-on training to help riders gain experience and learn safe riding practices.

“Hands-on training adds a large dose of safety to riding and improves the chances that you or those you care about will avoid injury or death while enjoying this activity,” said Chairman Inez Tenenbaum. “Ignoring safety measures increases the likelihood of you, or someone you love, being hurt or killed.”

CPSC offers the following guidelines to help riders recognize hazards and make riding both fun and safe:

• All ATV drivers, adults and children, should take a hands-on ATV safety course from a certified instructor.
• Always wear protective gear – especially a helmet – when riding ATVs.
• Do not ride on a single-rider ATV as a passenger or carry a passenger if you drive one.
• Never allow more people on any ATV than the vehicle was designed to carry.
• Do not drive ATVs on paved roads. ATVs have solid rear axles, which make turning on paved surfaces difficult and dangerous and increase the risk of the ATV overturning or hitting another object, such as a tree or car.
• Do not permit children younger than 16 years old to drive or ride adult ATVs. Children younger than 16 years old lack the developmental skills to safely drive adult ATVs, and more than 90 percent of all injuries to children involve this scenario. Likewise, children younger than 6 should never be on an ATV – either as a driver or passenger.

To learn more about safe riding and the safety of your family on ATVs, visit ATVSafety.gov

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12209.html

U.S. Supreme Court Applies Broad Definition To “Sales” Portion Of Overtime Exemption For Outside Salespersons

The United States Supreme Court recently decided a major case,  Christopher v. SmithKline Beecham Corp., involving the extent to which pharmaceutical representatives are excluded from overtime coverage under the “outside salesperson” exemption.

A divided Court determined that pharmaceutical sales representatives (“PSRs”) qualify for the “outside sales” exemption of the Fair Labor Standards Act.  The Court decided that under the most reasonable interpretation of DOL regulations, PSRs qualified as “outside sales” employees who are therefore exempt from the FLSA’s overtime requirements.

The Court rejected the argument that PSRs don’t actually make a “sale.” (Rather, PSRs simply market the drug product to doctors.)  But the overtime statute defines “sale” to include a “consignment for sale,” and a “consignment for sale” does not involve the transfer of title.  Thus, a restricted interpretation of “sale” is inconsistent with the precise language of the overtime law.  The Court adopted a functional, rather than a formal, inquiry, one that views an employee’s responsibilities in the context of the particular industry in which the employee works.

Given this broad reading, it followed that PSRs made sales under the overtime law and thus are exempt outside salespersons.  They obtain nonbinding commitments from physicians to prescribe drugs.  This kind of arrangement, in the unique regulatory environment within which pharmaceutical companies operate, is the only way PSRs can make “sales.”

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  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.

Big Lots Recalls Portable Ceramic Space Heaters Due To Fire, Electric Shock Hazard

Name of Product: Portable Space Heater and Portable Oscillating Space Heater

Units: About 70,500

Importer: Big Lots, of Columbus, Ohio

Hazard: The heaters can overheat and melt, posing a fire or electric shock hazard.

Incidents/Injuries: Big Lots has received four reports of the product overheating and melting. There are no reports of injury, fire or property damage.

Description: This recall is of two models of 1500 watt Climate Keeper ceramic heaters. Both models have a fan, two dials on top, a wire mesh panel in front and the name “Climate Keeper” and a label on the bottom with the model number and ETL 3130679. Model #FH107A has grey plastic housing. Model #PTC-902T is an oscillating heater with silver-grey plastic housing, a molded handle on top of the heater and a small extra button between the two dials which controls the oscillation.

Sold exclusively at: Big Lots stores nationwide from September 2010 through March 2012 for about $20 for Model #FH107A and $25 for Model #PTC-902T.

Manufactured in: China

Remedy: Consumers should stop using the recalled product immediately and return it to a Big Lots store for a full refund.

Consumer Contact: For additional information, contact Big Lots toll-free at (866) 244-5687 between 9 a.m. through 5 p.m. ET Monday through Friday, or visit the firm’s website at www.biglots.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12200.html?tab=recalls

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.

Frigidaire Gas Range Recalled Due to Fire Hazard, Sold Exclusively at Lowe’s Stores

A new products liability warning from the federal government about portable space heaters that have a potential for causing personal injury or wrongful death:

Name of Product: Frigidaire Self-Clean Gas Range

Units: About 185

Manufacturer: Frigidaire, of Charlotte, N.C.

Hazard: There can be a delayed ignition on the bake/broil features of the oven, posing a fire hazard.

Incidents/Injuries: One incident was reported. No injuries or damage have been reported.

Description: This recall for inspection and/or repair involves Frigidaire Gas Ranges Model # LGGF3043KFM with serial numbers within the following range: VF20457216 to VF20457555. The model and serial numbers are located near the base of the range just below the bottom right portion of the oven door. This gas range has five burners, stainless steel exterior and Frigidaire nameplate centered on the lower part of the oven door.

Sold Exclusively at: Lowe’s stores from February 2012 through March 2012 for between $800 and $1,000.

Manufactured in: United States

Remedy: Consumers with the recalled model and serial numbers should stop using the bake and broil functions immediately and contact Frigidaire. Frigidaire will provide information about an inspection and arrange for a free in-home service and repair if necessary.

Consumer Contact: For additional information, contact Frigidaire toll free at (888) 360-8556 between 9 a.m. and 5 p.m. ET Monday through Friday or visit the firm’s website at www.selfcleangasrangerecall.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12737.html

Prosecutorial Liability For Wrongful Prosecutions

On June 15, 2012, in Vania Minor v. State of Iowa the Iowa Supreme Court issued a decision clarifying the law regarding social workers’ liability for improper DHS investigations and the like.  Basically, the Iowa Supreme Court made it nearly impossible to do so.  But that follows a general trend — It’s awfully difficult, sometimes impossible, to sue government workers for this, that, and the other thing.  That makes sense when you think about it.  People are always unhappy with the government.  If every government worker was wide-open to liability for every decision that worker made, the government’s entire mechanism would grind to a halt.

One area of law that the court mentioned in its Minor decision was the potential civil rights liability of prosecutors for wrongful prosecutions against innocent people.  In an earlier post I discussed law enforcement’s liability in such situations.  It’s even more difficult to sue a prosecutor for a wrongful prosecution because prosecutors are generally completely immune from such claims.

For example, prosecutors are entitled to absolute immunity from civil liability when they perform functions “intimately associated with the judicial phase of the criminal process.”  Thus, a prosecutor has absolute immunity in initiating a prosecution and in presenting the State’s case. Acts falling within this function include the preparing and filing of trial information and motions.   Such acts also include decisions not to prosecute, decisions to defer prosecution, recommendations that criminal defendants pay court costs when prosecutions are dismissed or deferred, and for the training, supervision, and control of another prosecutor.

There are other areas though where prosecutors have some (albeit minimal) exposure to liability.  Prosecutors do not have absolute immunity when they perform investigatory acts before probable cause to arrest arises because police traditionally perform this function.  A few years ago a federal court of appeals allowed civil rights claims to proceed against a county attorney who was accused of obtaining, manufacturing, coercing and fabricating evidence before filing formal charges.   Further, prosecutors do not have absolute immunity when they give advice to the police to aid them in obtaining a confession.  Finally, absolute immunity does not shield a prosecutor who prepares and files a sworn affidavit to accompany a motion for an arrest warrant.

Strollers Recalled By Kolcraft Due To Fingertip Amputation And Laceration Hazards

The U.S. Consumer Product Safety Commission has announced potential personal injury or products liability issues with strollers manufactured by Kolcraft Enterprises.  These are potential personal injury or wrongful death or products liability issues.

Name of Product: Contours Options three- and four-wheeled strollers

Units: About 36,000 in the United States and 270 in Canada

Manufacturer: Kolcraft Enterprises Inc., of Chicago Ill.

Hazard: A child or consumer’s finger can become caught in the opening formed when locking and unlocking the hinge mechanism which is used to adjust the handlebars on the strollers. This presents an amputation and laceration hazard to children and the adults handling the stroller.

Incidents/Injuries: Kolcraft and CPSC have received five reports of injuries involving the hinge mechanism, including reports of three children whose fingertips were amputated and two adults whose fingers were either smashed or lacerated.

Description: This recall involves Kolcraft Contours Options three- and four-wheeled strollers. Strollers included in the recall have model numbers starting with ZL002, ZL005, ZL008, ZL015 and ZL018. On the ZL002 model, the model number and date of manufacture is printed on a sticker above the left wheel. On the ZL005, ZL008, ZL015 and ZL018 models, the model number and date of manufacture is printed on a label sewn into the edge of back of the stroller seat pad. The strollers were manufactured from January 2006 through November 2009 and sold in various color schemes.

Sold at: Juvenile product specialty stores nationwide and online at Amazon.com, Target.com and ToysRUs.com from January 2006 and June 2012 for between $150 and $160.

Manufactured in: China

Remedy: Consumers should immediately stop using the product and contact the company to receive a free repair kit.

Consumer Contact: For additional information, please contact Kolcraft at (800) 453-7673 between 8 a.m. and 6:45 p.m. ET Monday through Thursday, 8 a.m. and 3:30 p.m. ET Friday, or visit the firm’s website at www.kolcraft.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12196.html

Effects Of Criminal Conviction On Later Civil Action

In some instances a crime will also result in a civil lawsuit for damages.  Examples include drunk driving criminal matters that became motor vehicle accident or motorcycle accident claims and criminal assaults and batteries that lead to a money damages lawsuit for civil assault and battery.  But what are the effects of a guilty plea or conviction in the underlying criminal action?

If there’s an actual criminal trial, a conviction by a court or jury will result in automatic liability against that person in a later civil lawsuit.  So if a criminal jury finds a defendant guilty of battery stemming from a fight, that criminal defendant will later automatically lose a civil money damages case brought by the victim of the fight.  The criminal defendant, having already been found guilty in criminal court, does not get the opportunity to re-argue liability in a later civil lawsuit.  That will be a “damages only” case.

The same is true for guilty pleas.  A person cannot plead guilty to an offense in a criminal case and then later contest responsibility in a civil lawsuit.  The guilty plea is the criminal defendant’s admission that that person committed a crime, for example battery during a fight.  The law does not allow someone to admit wrongdoing in a criminal case but then deny responsibility in a civil lawsuit.

The purpose of this rule is to prevent re-litigation of the same point and prevent people from taking up the courts’ time and resources with a guilty plea or unsuccessful criminal defense, and then using more of the courts’ resources for a do-over on an issue for which a guilty plea has already been entered or a criminal trial lost.  Another reason for the rule is to prevent the possibility of true tribunals — one criminal, the other civil — from reaching conflicting decisions.

Of course, conflicting results can still happen if someone is found not guilty by a criminal jury but liable by a civil jury, O.J. Simpson being the prime example of that situation.  A person found not guilty at a criminal trial can still be sued for money damages in a later civil action; this is a one-way rule that only gives guilty verdicts and pleas “preclusive effect” in a later civil case and provides no special protection from a civil suit after a not guilty decision.

Recall Of Product Sold At Toy R’ Us Because Of Choking Hazard.

The Consumer Products Safety Commission is again reporting about dangers from a product sold at Toys R’ Us that could lead to personal injury or wrongful death or products liability.

Name of Product: Imaginarium 5-Sided Activity Center

Units: About 24,000

Importer: Toys “R” Us Inc. of Wayne, N.J.

Hazard: The small wooden knobs attaching the xylophone keys to the end can detach, causing a choking hazard to young children.

Incidents/Injuries: Toys “R” Us has received eight reports of the knobs detaching. No injuries have been reported to the firm.

Description: This recall involves the Imaginarium 5-Sided Activity Center. The multi-sided center has two triangle-shaped ends with a wooden multi-colored xylophone on one and a mirror on the other. The three sides are square-shaped and include moveable block letters, rotating gears and sliding shapes. The name “Imaginarium” appears in a blue, oval-shaped logo underneath the mirror on one end. The second ‘i’ in the logo is dotted with a shooting star. The recalled product has model number 46284; Toys “R” Us item number 295909; and has the barcode number 000799985462841. The model number is printed on the back of the box, directly above the bar code. These numerical markings do not appear on the actual product.

Sold exclusively at: Toys “R” Us stores nationwide and online via http://www.toysrus.com from August 2009 through September 2010 for about $25.

Manufactured in: China

Remedy: Consumers should immediately stop using the product, move it out of the reach of young children and return it to a Toys “R” Us store for a refund or store credit.

Consumer Contact: For additional information, contact Toys “R” Us toll-free at (800) 869-7787 between 9 a.m. and 11 p.m. ET Monday through Saturday and between 11 a.m. and 7 p.m. Sunday, or visit the firm’s website at www.toysrus.com/safety.

Please feel free to call me if you have any concerns about this product or any toy or children’s product.

Mechanic’s Liens In Iowa

Mechanic’s liens are intended to ensure that contractors are paid for the work they perform.  They are implicated when a property owner refuses to pay a contractor for the contractor’s work.  At its most basic level, a mechanic’s lien allows the contractor to put the homeowner to a choice — pay me, or lose your property.

Mechanic’s liens in Iowa are governed by Iowa Code Chapter 572.  If a property owner refuses to pay a contractor, the contractor may place a mechanic’s lien on the subject property.  If the property owner still refuses to pay, the contractor can file a petition to foreclose on the mechanic’s lien in district court.  The judge will then decide whether the property owner owes the contractor any money and, if so, how much.  The judge can order foreclosure on the subject property and the property’s judicial sale.  The proceeds of that sale are then used to pay the contractor and, oftentimes, the contractor’s attorney fees and expenses.

Mechanic’s liens are a powerful weapon for contractors, especially in a state like Iowa that has strong homestead laws that often protect a person’s most valuable possession — their home and the land it sits on — from judgment collection.  Mechanic’s liens are not like other types of judgment liens; they are more similar to mortgage liens in that they are given a high lien priority over other liens on the property and a contractor, same as a bank, can seek the judicial sale of a person’s property if the contractor’s work goes unpaid because Iowa’s homestead exemption does not protect against mechanic’s lien judgments.  For most other types of judgment liens, that lien sits on the property and does nothing until such time as the owner tries to sell, at which point the lien may or may not mean something depending on how many and what types of other liens are on the property.

Mechanic’s liens are in addition to contractor’s other rights, most commonly a standard breach of contract claim.  The premises of the claims are the same — I did work that you promised to pay me for, you’ve refused to pay me, and now you owe me.  The difference is that a standard contract claim generally includes no right to attorney fees, litigation expenses, or immediate judicial sale of the property.  If a contractor is successful with a standard contract claim and the property owner still refuses to pay the judgment, the best the contractor can do is slap a regular lien on the property and hope to see some of the money some day, or go through all the other judgment collection processes that other people go through, like seizing and selling nonexempt property or garnishing wages.  In sum, contractors that don’t take adavantage of Iowa’s mechanic’s lien law are making things much more difficult than they need to be, which brings me to my next point . . . .

Iowa Code Chapter 672 has several procedural and filing requirements that are subject to various deadlines.  Failure to follow all necessary procedures and comply with all deadlines may reduce the contractor’s mechanic’s lien rights.  In some instances such failures can actually completely eliminate the contractor’s mechanic’s lien rights, leaving it with garden-variety breach of contract claims that will not include attorney fees and expenses or the opportunity to seek immediate forclosure and judicial sale of the property to satisfy any judgment received against the property owner for the unpaid work.  It is recommended that contractors hire a construction or contract attorney to assist with a mechanic’s lien action.

One area that can trip up a contractor in a mechanic’s lien situation is the property owner’s right to send the lienholder a written demand to commence suit.  If the contractor receives such a demand, it needs to start the music and file a petition to foreclose on the mechanic’s lien within thirty days.  Failure by the contractor to do so results in a complete forfeiture of all mechanic’s lien rights and remedies, although the contractor can still sue under the lesser contract theory discussed above.

Benzocaine And Blood Disorders

The Food and Drug Administration is warning that benzocaine–an ingredient found in many over the counter pain gels and liquids–can be dangerous for infants.  Benzocaine is a local anesthetic that’s in products like Anbesol, Orajel & Baby Orajel, Orabase, and Hurricaine.  The FDA cautions that using benzocaine products to stop mouth and gum pain can cause a rare and sometimes fatal condition called methemoglobinemia.  Methemoglobinemia is a blood disorder that occurs when the oxygen that’s delivered through blood gets to low levels that can cause severe injury or even death.

The FDA reports that since 2006 there have been 29 reports of benzocaine gel-related cases of methemoglobinemia.  Nineteen of those cases were in children.  Fifteen of those nineteen were children under the age of 2.

The FDA has identified various symptoms to watch for.  Those can include pale, gray, or blue-colored skin, lips and fingernail beds, shortness of breath, headache, light-headedness, and rapid heart rate.

Adults can also be affected by methemoglobinemia.   Adults who smoke or those with heart disease or respiratory problems like asthma, bronchitis or emphysema are at increased risk of complications of methemoglobinemia.

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.