Choking Hazard Lawsuits

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 What are Choking Hazard Lawsuits?

Choking hazard lawsuits are a subcategory of product liability claims. In many cases, these lawsuits are filed by parents on behalf of their children who were harmed by choking on a product.

These types of claims often involve a toy or food item that was intended for use or ingestion by small children. These types of claims can also be filed by an adult who has suffered a choking injury due to a defective product.

What is a Product Liability Case?

A product liability is a type of case that arises when a consumer is injured by a defective product. When an individual is injured by a defective product, they may file a lawsuit. The laws of product liability provide guidelines that establish which parties may be responsible for injuries and when the plaintiff has a valid claim for their injuries.

Typically, there are numerous parties that may be held legally responsible for a defective product that causes injury. These may include:

  • A seller;
  • A distributor;
  • A wholesaler; and
  • A retailer.

What are the Types of Defects that Arise in Product Liability?

There are three primary types of defects in products:

  • Design defects;
  • Manufacturing defects; and
  • Warning defects.

A design defect occurs when a product is made. This defect renders the product inherently unsafe.

This is a defect that existed when the product was being planned and designed. It occurs prior to the manufacturing of the product.

An example of this may be a children’s toy with detachable parts that are small enough for a child to choke on. Children do not have the mental capacity to realize a toy is defective and will likely attempt to put a small object in their mouth.

A manufacturing defect is a that occurs as a result of the manner in which the product is assembled, or put together. Prior to the assembly of the product, it has no defects.

However, when assembled the product becomes defective. This may be a result of a mistake or incorrect assembly, which renders it unsafe. Examples may include children’s toys that are missing a screw, allowing a small portion of the toy to come off and pose a potential choking hazard.

A warning defect is present when a product does not have sufficient instructions or warnings about how to properly use the product. For example, a car seat has several labels regarding where to place the seat for what age child, how to position the seat, and how to secure the seat. It also comes with an instruction manual regarding its usage. If the seat was missing these labels and the child was injured, the product had a warning defect.

How can I File a Lawsuit on the Grounds of Product Liability?

Product liability is governed by state laws. Those laws differ by state. There are different theories of recovery that provide individuals a basis for their lawsuits. The two theories of recovery for product liability cases are the negligence theory of recovery and the strict liability theory of recovery.

What is the Negligence Theory of Recovery?

Pursuant to the negligence theory of recovery, a defendant, such as a manufacturer, distributor, or seller, must have owed a duty to the consumer to make, distribute, or sell a product that is free from any defects. The consumer, or plaintiff, must show that the defendant breached the duty that they owed and, as a result, the plaintiff sustained injuries.

The plaintiff may seek compensation for their injuries, called damages. Damages are awarded to the plaintiff in order to cover expenses that result from their injury, such as medical expenses and lost wages.

What is the Strict Liability Theory of Recovery?

It would be nearly impossible for a consumer to prove precisely how a product manufacturer was negligent in their design and overly burdensome to require them to do so. Therefore, in certain cases, a plaintiff may be able to recover for their injuries under the theory or strict liability.

Under strict liability, the plaintiff is not required to show the defendant was negligent. It is not relevant how carefully the product was manufactured. The defendant may still be held liable. In order for a plaintiff to prevail against a manufacturer, they must show:

  • The manufacturer sold the defective product;
  • The consumer used it the way it was intended to be used or in a foreseeable manner;
  • The product was not substantially changed from the original condition in which it was sold; and
  • The defect in the product caused the plaintiff’s injury, which resulted in damages.

It is important to note that there are limitations as to whom a plaintiff may sue under the theory of strict liability. A plaintiff may only recover against a seller who regularly sells the kind of product that caused the injury. For example, a plaintiff may sue a seller who owns a store that sells items for children and babies if they purchase a defective car seat. They may not, however, be able to sue their friend from whom they purchase a defective car seat.

Are Choking Hazard Lawsuits the Result of a Failure to Warn?

Yes, choking hazard lawsuits are the result of a failure to warn. Pursuant to product liability laws, manufacturers of products are required to warn consumers of any potential choking hazards.

All products are required to be reasonably safe for consumers to use as intended. A manufacturer’s failure to warn can cause them to be liable for injuries.

What Must I Prove in Order to Be Successful in a Failure to Warn Lawsuit?

There are several elements a plaintiff must show in order to be successful in a failure to warn lawsuit. A manufacturer, retailer, or distributor may be held liable for failing to provide adequate product warnings. In order to prevail on a successful choking hazard claim, the plaintiff must show:

  • The defendant knew about the product’s danger;
  • The defendant had a duty to warn the plaintiff about that danger;
  • The defendant breached their duty to warn of the choking danger; and
  • The plaintiff was injured because of the failure to warn of the danger.

When Can I File a Choking Hazard Claim?

Generally, if a child uses a product or toy in the way it was intended to be used and chokes on the product, or a part of the product, their parents can sue for their injuries. The same rule applies if an adult chokes on the product or part of the product. In some jurisdictions, a plaintiff can sue under the strict liability theory discussed above.

Do I Need to Talk to an Attorney about Choking Hazard Lawsuits?

Yes, it is essential to have the assistance of an experienced class action attorney for a choking hazard lawsuit. You or your child choking on a product that you believed to be safe can be an extremely scary and stressful situation. It may also result in injuries, which can include damage to the throat and even, in extreme cases, brain damage.

An attorney can review your case, determine what damages may be available to you, and represent you during any court proceedings, if necessary. It is important to remember that if your child choked on a product, someone else’s likely will too. You can help both your child and other children by holding the manufacturer responsible for the defect.


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