Burlington Coat Factory Agrees to $1.5 Million Civil Penalty for Failure to Report Drawstrings in Children’s Outerwear and for Selling Recalled Outerwear

The U.S. Consumer Product Safety Commission (CPSC) announced today that Burlington Coat Factory Warehouse Corp., of Burlington, N.J., has agreed to pay a civil penalty of $1,500,000. The settlement agreement(pdf) has been provisionally accepted by the Commission (4-0).

The settlement resolves CPSC staff allegations that from 2003 to 2010, Burlington knowingly failed to report immediately to CPSC, as required by federal law, that it had sold many different children’s sweatshirts and jackets with drawstrings at the neck that could cause personal injuries or death due to product liability.  Children’s upper outerwear with drawstrings, including sweatshirts, sweaters, and jackets, poses strangulation and entanglement hazards to children that can result in serious injury or death. The settlement also resolves CPSC staff allegations that from 2008 to 2012, contrary to federal law, Burlington knowingly sold or had in its store inventories many of these garments after they had been recalled.

The penalty is the highest that CPSC has ever assessed for violations involving children’s upper outerwear with drawstrings.

Federal law requires manufacturers, distributors, and retailers to report to CPSC immediately (within 24 hours) after obtaining information reasonably supporting the conclusion that a product contains a defect that could create a substantial product hazard, creates an unreasonable risk of serious injury or death, or fails to comply with any consumer product safety rule or any other rule, regulation, standard or ban enforced by CPSC. Federal law also bars selling products that have been recalled by a manufacturer.

CPSC began warning about drawstring dangers in the early 1990s. The agency issued guidelines in 1996 about drawstrings in children’s upper outerwear. Those guidelines were incorporated into an industry voluntary standard in 1997. In 2006, CPSC’s Office of Compliance announced (pdf) that children’s upper outerwear with drawstrings at the hood or neck would be regarded as defective and presenting a substantial risk of injury to young children. Then, in July 2011, based on the guidelines and voluntary standard, CPSC issued a federal regulation that designated as substantial product hazards children’s upper outerwear in sizes 2T to 12 (or extra-small to large) with neck or hood drawstrings, and children’s upper outerwear in sizes 2T to 16 (or extra-small to extra-large) with certain waist or bottom drawstrings.

The sweatshirts and jackets that are the subject of the penalty were sold by Burlington Coat Factory stores throughout the country. Beginning in 2007, CPSC and the garments’ manufacturers and distributors, as well as Burlington in 2010, announced the recalls listed in the chart below of children’s garments with drawstrings covered by the penalty. In agreeing to the settlement, Burlington denies CPSC staff allegations that it knowingly violated the law.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12235.html

Manufacturer/Importer/Distributor/Retailer (link to recall)	Product	Number of Units (Approximate)
5 Star Apparel	Mecca children’s hooded jackets with drawstrings	11,500
Allura Imports	Girls’ hooded sweatshirts	3,700
Baycreek	Hooded sweatshirts	1,900
Bobens Trading	Girls’ hooded sweatshirts with drawstrings	3,900
Brand Evolution	Locks All Over boys’ hoody, All Over Skaters boys’ hoody and Rock Mask boys’ hoody	2,800
Bubblegum USA	Girls’ hooded jackets with drawstrings	900
Burlington Coat Factory	12 brands of hooded jackets and sweatshirts	10,000
Byer California	Girls’ cargo pocket jackets	600
Fashion Options	Boys’ velour warm-up sets	5,400
Franshaw	Children’s hooded jackets	2,400
Haselson International Trading	Children’s hooded sweatshirts with drawstrings	23,000
Hind Fashions	Boys’ hooded jackets	200
Jason Evans	Boys’ fleece & flannel zip hooded sweatshirts with drawstrings	18,300
Jason Evans	Children’s hooded jackets	1,300
KOMAN Sportswear	Boys’ hooded sweatshirts and warm-up sets	13,300
Liberty Apparel	Jewel brand girls’ hooded sweatshirts	12,000
Liberty Apparel	Jewel girls’ hooded sweatshirts with drawstrings	2,300
Lollytogs	Rim Rocka boys’ hooded jackets and Pelle Pelle girls’ hooded jackets	23,000
North-Sportif	North-Sportif hooded jackets and reversible vests	360 jackets and 360 vests
Regaliti	Girls’ hooded jackets with drawstrings	3,600
S. Rothschild & Co.	Girls’ coats	13,500
Ten West Apparel	Boys’ hooded jackets	75
Trendset Originals	Girls’ hooded jackets	2,400 of Marci & Me brand, unknown number of Shampoo brand
Weeplay Kids	Hooded sweatshirts with drawstrings	11,800

“For Cause” Termination Of Contract Employees

In the past I’ve discussed Iowa’s at-will employment rule.  Under that law, an employee can be fired at any time for any reason without warning.  But what about employees who have an employment contract and are thus not necessarily  considered at-will?  Under what circumstances can a contract employee be fired?

Courts will always first look to the language the parties have included in their contract.  Some employment contracts include a termination section that basically states that either party has the right to terminate the employment relationship at-will, same as the general rule I summarized above.  Other contracts may delineate specific circumstances under which a person can be discharged and limit the employer’s right to fire to those circumstances.  Some employment contracts though are utterly silent in this regard.  So what’s the default rule for termination of a contract employee when the contract contains no language governing termination?

A contract of employment which by its express terms is for a definite time or to last until a definite day presents no problem concerning its duration and termination but will be less clear if it does not have a termination rights section.  In that case the employer will still have the implied right to discharge the employee for cause, but otherwise the employment cannot be terminated of right during the term of its existence as expressed in the contract.  An employee under a “for cause” contract may be terminated for reasons that relate to ‘performance of his or her job and the impact of that performance on an employer’s ability to attain its reasonable goals.  “Cause” does not include reasons that are arbitrary or unfair.  In such a case it’ll be up to a judge or a jury to decide whether the employer fired an employee “for cause,” and is therefore not liable, or whether the employer did not have cause, in which case it could not legally discharge the employee.

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.

 

Kolcraft Recalls Contours Tandem Strollers Due to Fall and Choking Hazards

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product because the produce could cause personal injuries or death due to product liability. 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: Contours Options LT Tandem Strollers

Units: About 5,600

Importer: Kolcraft Enterprises Inc., of Chicago, Ill.

Hazard: The front wheel assembly can break, posing a fall hazard to the child in the stroller. In addition, for strollers manufactured in January and February 2012, the nuts that hold the stroller’s basket support screws in place can detach. Detached nuts can pose a choking hazard to young children.

Incidents/Injuries: Kolcraft has received six reports of front caster wheels breaking and two reports of the basket’s support screws and nuts detaching. No injuries have been reported.

Description: This recall involves all Contours Options LT tandem strollers with model number ZT012. The model number and date of manufacture are printed on a label found on the rear leg of the stroller. The dual-seat strollers have one mesh basket beneath both seats and were sold in two color schemes; black with red canopies and accents, and gray with yellow canopies and accents. “Options LT” is printed on a bar along the side of the stroller.

Sold at: Burlington Coat Factory and juvenile product specialty stores nationwide and online at Amazon.com, Target.com and other online retailers between February 2012 and July 2012 for about $250.

Manufactured in: China

Remedy: Consumers should immediately stop using the product and contact the company to receive free replacement wheels. Consumers with strollers manufactured in January and February 2012 will also receive replacement nuts for the basket support screws.

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

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12233.html

Burlington Coat Factory Recalls Power Strips Due to Fire Hazard

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 because of the risk of personal injuries or wrongful death. 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: Lush Life® power strips

Units: About 6,000

Importer: Lush Life, of LaJolla, Calif.

Distributor: Burlington Coat Factory, of Burlington, N.J.

Hazard: The power strips have undersized wiring which poses a risk of shock to consumers. In addition, the wiring and plastic strip fail to meet fire resistance safety standards, posing a fire hazard to consumers.

Incidents/Injuries: None reported.

Description: This recall involves four designs of power strips. The vibrantly designed power strips come in four prints including, leopard, rose, skull and zebra. Model numbers 12256, 12257, 22563 and 22575 can be found on the six-outlet power strip.

Sold at: Burlington Coat Factory, The Container Store and other retail stores nationwide from July 2011 through March 2012 for about $10.

Manufactured in: China

Remedy: Consumers should immediately stop using the power strips and return them to the place of purchase for a full refund or store credit.

Consumer Contact: For additional information, please contact the firm toll-free at (888) 223-2628 between 8:30 a.m. through 6 p.m. ET Monday through Friday, or visit the firm’s website at www.burlingtoncoatfactory.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12230.html

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

When Lassie Attacks — Dog Bite Liability In Iowa

Personal injury matters involving dogs are fairly common.  They can be divided into two main categories.  The first encompasses cases involving dog bites, claw scratches, or other aspects of a dog attack.  The second category of dog liability concerns motor vehicle accidents and motorcycle crashes caused by roaming dogs.

For dog attacks, Iowa Code 351.28 states that “[t]he owner of a dog shall be liable to an injured party for all damages done by the dog, when the dog is caught in the action of worrying, maiming, or killing a domestic animal, or the dog is attacking or attempting to bite a person, except when the party damaged is doing an unlawful act, directly contributing to the injury. ”  That is a “strict liability” statute, meaning that the dog’s owner is automatically liable for injuries that fall within the statute’s terms without the need to prove the owner’s negligence or knowledge of the dog’s vicious or dangerous propensities.  This statute also creates the possibility of an action for personal injuries against a dog’s owner if a person is hurt while trying to escape a dog attack, for example a person who flees from a dog attack into a street and is hit by a car.

In some circumstances, people other than a dog’s owner may be liable for injuries sustained during an attack by a dog.  One example is people who are possessing, “keeping,” or “harboring” a dog for someone else.  That person may be liable for negligence if someone is hurt during an attack by the dog and it is proved that that person possessed, kept, or harbored a dog on the property that was known or should have been known to have dangerous tendencies.   Thus, while legal owners are strictly liable under Iowa Code 351.28, individuals possessing,  keeping, or harboring the dog on their property could also be held liable for damages if it can be proven that they knew or should have known that the dog was dangerous or potentially dangerous based upon prior experiences.

Another example of non-owner liability is landlords.  A landlord that allows a dog known to be aggressive to roam around the common areas of leased property may liable for negligence if that dog attacks someone in the common area, even if the landlord is not harboring or keeping the dog and has no control over the dog.  Another possible avenue of landlord liability is when the landlord harbors or controls a dog owned by someone else and knows or should know that the dog is dangerous.  In that instance, the landlord is liable for dog attack injuries that occur anywhere on the premises, even outside of common areas.

The other main category of dog-related liability concerns motor vehicle accidents caused by dogs that are running free.  Dog owners have a duty to control their dogs.  A dog that gets free and, for example, runs into a street and causes an accident, may be the basis for a negligence claim against the dog’s owner or the person responsible for keeping or harboring the dog.

Please feel free to contact me if you’d like to investigate the possibility of a personal injury or motor vehicle accident claim involving a dog.  I’ll be happy to meet with you and discuss the matter.

When Can You Recover Emotional Distress Damages In A Negligence Case?

Recovery of damages for emotional distress or mental anguish in motor vehicle accident, motorcycle crash, dog bite, defective product, or negligence cases is not automatic.  The right to seek emotional distress damages depends first on whether you’ve suffered a physical injury as a result of the negligence.  If you have, then you always have an opportunity to claim money for emotional distress.  But the analysis is a little more complicated when you have a negligence case that does not involve a physical injury to you.

Iowa’s courts have recognized an exception to the physical injury requirement rule when the nature of the relationship between the parties is such that there arises a duty to exercise ordinary care to avoid causing emotional harm.  Courts evaluate whether the relationship was so coupled with matters of mental concern or solicitude, or with the sensibilities of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, and it should be known to the parties from the nature of the obligation that such suffering will result from its breach.

There must be both a close nexus to the action at issue and extremely emotional circumstances to permit the recovery of emotional distress damages in a negligence case that does not involve physical injuries.  The emotional distress must naturally ensue from the negligence.  So far Iowa has permitted emotional distress damages without physical injury in medical malpractice actions, in the performance of a funeral contract, in the negligent delivery of a telegram announcing the death of a close relative, and in legal malpractice actions involving immigration attorneys who engage in illegitimate attempts to gain U.S. residency for their clients.

Family Dollar Stores Recalls Decorative Light Sets Due To Fire and Electrical Shock Hazard

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: 200 Mini Lights

Units: About 280,000

Importer: Family Dollar Services, Inc., of Matthews, N.C.

Hazard: The light sets do not meet the UL standard for this product and pose a fire and shock risk.

Incidents/Injuries: There were three reports of overheating. No injuries or property damage were reported.

Description: The recalled decorative light sets have “200 Mini Lights” and “Multi Lights, Green Wire” printed on the red box. The product is identified by SKU # 2211428 and UPC # 049696720465 found on the back of the package. The product contains labels attached to a tag on the power cord with UL Listing # E346525 and Model # F0L200A4S.

Sold exclusively at: Family Dollar stores from September 2011 through December 2011 for $8.

Manufactured in: China

Remedy: Consumer should immediately stop using the light sets and return the product to a Family Dollar store for a full refund.

Consumer Contact: For additional information, contact Family Dollar Stores at (800) 547-0359 between 8:30 a.m. and 5 p.m. Monday through Friday, or visit the firm’s website at www.familydollar.com in the Help section.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12222.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.

Liability For Accidental Lies — The Law Of Negligent Misrepresentation In Iowa

Everyone is probably familiar with the concept of intentional fraud, which is in the category of business wrongs.  That’s basically when one party to a transaction knowingly lies about some important fact in an effort to induce the other party to complete the transaction.  Fraud occurs if that other party relies on the lie in making decisions about the transaction.  The person who was lied to and induced to enter into the transaction under false pretenses can sue for fraud.

But what happens when someone negligently (accidentally) provides false information to someone else as part of a business transaction?  Can the injured party still sue for any harm that comes from relying on that accidental lie?  The answer is yes, but only in rare circumstances.

The general rule for negligent misrepresentation is that someone who, in the course of that person’s business, profession, or employment, or in any other transaction in which that person has a financial interest, supplies false information for the guidance of others in their business transactions, is subject to liability for monetary loss caused to them by their justifiable reliance upon the information, if the communicating person fails to exercise reasonable care or competence in obtaining or communicating the information.  Liability for negligent misrepresentation is limited to loss suffered by the person or one of a limited group of persons for whose benefit and guidance the communicating person intends to supply the information or knows that the recipient intends to supply it or through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

Iowa law holds that only those who are “in the business of supplying information to others” can be liable for negligent misrepresentation.
When determining whether a person is in the business of supplying information to others, courts consider several factors.  They distinguish between relationships that are arm’s-length and adversarial and those that are advisory.  Courts also analyze whether the person providing the information “is manifestly aware of the use that the information will be put, and intends to supply it for that purpose.”  Another factor is whether the defendant gave the information to the plaintiff “gratuitously or incidental to a different service.”  Courts further consider the role the defendant was playing when the alleged misrepresentation occurred.

To date, Iowa’s courts have found life insurance agents, accountants, appraisers, school guidance counselors, and investment brokers to be within the class of occupations that may be exposed to liability for negligent misrepresentation.  In other cases, the Iowa Supreme Court has refused to allow suit for negligent misrepresentation when the defendant was a retailer in the business of selling and servicing merchandise, a seller who made misrepresentations pursuant to the sale of a business, a bank officer negotiating a loan guarantee with a bank customer, or an employer negotiating with an employee for employment.

Iowa’s law of negligent misrepresentation is constantly evolving.  Any of these types of cases require careful analysis of whether Iowa’s narrow standards for negligent misrepresentation liability can be met.  Pleaseel free to contact me if you believe that you’ve been the victim of a negligent misrepresentation.

Iowa Supreme Court Rules That Life Insurance Agents Owe Duty Of Care To Beneficiaries

On July 6, 2012, the Iowa Supreme Court decided in Pitts v. Farm Bureau Life Insurance Company that life insurance agents owe a duty of reasonable care to not only the people who contact them for life insurance, but also those who are intended to be benefited by the life insurance policy.  This question arises when life insurance beneficiaries do not receive the proceeds of a life insurance policy because of negligence committed by the agent who helped the deceased obtain life insurance.  Pitts is the first time that Iowa has recognized that the intended beneficiaries of the life insurance policy have a claim against the life insurance agent for negligence that causes the beneficiary to lose the right to recover the life insurance proceeds under the policy.

In Pitts, the plaintiff claimed that when an insured intends for a particular person to be the beneficiary of a life insurance policy, and the insured expresses that desire to his or her life insurance agent, the agent procuring insurance for the insured owes the insured’s intended beneficiaries a duty of care to procure the insurance requested.  The Iowa Supreme Court identified several reasons for allowing the plaintiff to sue the deceased’s insurance agent.  First, the main purpose of the agent’s transaction with the insured is to benefit the intended life insurance beneficiary.  Second, damage to parties other than the life insurance policyholder, such as the intended beneficiary in the event of negligence, is foreseeable to the insurance agent.   The intended life insurance beneficiary is exactly the person the insurance agent could reasonably know and foresee was relying on the agent’s professional performance.

The Iowa Supreme Court carefully circumscribed the potential liability of life insurance agents to intended beneficiaries.  In order to limit the potential liability of insurers, avoid conflicts of interests, and not interfere with the insured–insurer relationship, Iowa requires a plaintiff to show that he or she was the direct, intended, and specifically identifiable beneficiary of the life insurance policy as well as prove negligence.  Further, the plaintiff must produce evidence from the life insurance policy itself that indicates the plaintiff is the intended beneficiary of the policy.  If the plaintiff cannot show that he or she is the intended beneficiary of the policy, then the insurance agent does not owe that person a duty of care.

Please feel free to contact me if you have an insurance law question about a life insurance policy or would like to discuss a negligence action against a life insurance agent.  I’ll be happy to review your circumstances with you to determine whether you may have a possible case.

Innovage Recalls Discovery Kids Lamps Due To Fire And Burn Hazards

A new products liability warning from the federal government about childrens’ lamps that have a potential for causing personal injury or wrongful death:

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: Discovery Kids™ Animated Marine and Safari Lamps

Units: About 300,000

Importer: Innovage LLC, of Foothill Ranch, Calif.

Hazard: The placement of internal wires near the circuit board can cause electrical short-circuiting and sparking, posing a fire and a burn hazard to consumers.

Incidents/Injuries: Innovage has received 11 reports of short circuiting. This includes three reports of lamps catching fire, which led to property damage. No injuries have been reported.

Description: This recall involves Discovery Kids Animated Marine and Safari Lamps that feature rotating films with marine or safari scenes. The words “Discovery Kids” are printed on the front top-left corner of the product. The recalled products have both an 11-digit batch number that begins with either 584894 or 10128 and a model number of 1628626, 1642433, 1641522, 1641523, 1645729, or 1645853. Batch numbers can be found imprinted in the plastic underneath the lamps and on the bottom of the packaging. Model numbers can be found on stickers placed underneath the lamps and on the bottom of the packaging near the barcode.

Sold at: Bed Bath & Beyond, Bonton, JCPenney, Kohls, Office Max, Toys “R” Us stores nationwide as well as the online retailers Amazon, Ideeli, JCPenney, Kohls, Macy’s and Overstock from June 2010 through March 2012 for between $10 and $20.

Manufactured in: China

Remedy: Consumers should immediately stop using the lamps and contact Innovage for instructions on how to obtain a full refund.

Consumer Contact: For additional information contact Innovage toll-free at (888) 232-1535 between 9 a.m. and 5 p.m. PT Monday through Friday, visit the firm’s website at www.innovage.net, www.lamprecall.org or e-mail info@lamprecall.org

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12215.html