Personal Injury Law (Accidents/Slip & Fall)/Child proofing battery powered devices
QUESTION: Hello Mr Dorfman,
I am designing a small battery powered device to be used around the house. The device uses coin cell batteries which can be very harmful if swallowed. The device itself is quite small, about the same size and shape of a stack of five pennies.
I would like to find out more about my obligations regarding child proofing the device. Can you tell me where I can find more information about this and/or give me an idea of what I am obligated to do? If I include a warning with my product, am I still responsible if a child swallows one of my devices?
Thank you and regards,
ANSWER: I'm not sure any attorney can answer your concerns. This is especially so since you don't say what the device is used for and who are the intended or likely users or where the average person would store it....among other such questions. If it is a device that would never be used by a small child or never likely to be stored where kids might get to it, then no problem. What does it look like? Is it something that would attract a child to it? Do you see how all of these questions go to the answer you are seeking? I can't imagine a device to be "used around the home" when it is the size and shape of 5 stacked pennies. All I can guess is some sort of remote control for some other device. Consider, every small device, small enough that a child could swallow, does not require warnings and even some items that require warnings are not exempt from liability even with warnings. All the warnings in the world won't prevent you getting sued if you sell a swallowable item that is likely to be in the presence of toddlers. Maybe coins themselves should be outlawed since children swallow coins sometimes (sic). See the point? Maybe you could add some feature or shape to the device that would make it unlikely for a toddler to put it in the mouth. If you tell me generally what the damn thing is, I could offer a better opinion. You could also contact the FTC for an opinion but they too would need to know if it might be considered a hazard. Just being small doesn't answer the question. It is also who will use it, what will it be used for, where would it be found around the house, etc.
[an error occurred while processing this directive]---------- FOLLOW-UP ----------
QUESTION: Thanks Mr Dorfman,
Sorry I was not more specific in my earlier question. It makes perfect sense to give you more information, but I was following my own train of thought and neglected to think of that. (not a good start!)
The device is intended as part of a system of object location. The idea is that people will stick the device onto their often lost objects - keys, wallet etc. When they need to find the item quickly, they can send a radio signal to the device, which then makes a sound, telling people where their lost object can be found.
The product is not intended to be used by children, but it is intended to be used around the house, where children may be able to touch it. The item is just a small black disc - not particularly attractive for children, but not exactly actively repelling them either. We can take steps to make the plastic cover hard for kids to open, but even if they swallow the whole thing, it will probably do some harm.
If the device is not intended to be used closely around children, but used in an area where kids may have access to it, how much protection will a warning likely give me?
You mentioned that "some items that require warnings are not exempt from liability even with warnings". What type of situation would that be, and how can I prevent that from happening to me? I am planning on selling a swallowable item that may very well be in the presence of toddlers. Any suggestions?
Thanks again for your answer - I really appreciate it.
You realize of course that I have no particular knowledge or experience on the subject of marketing household items. Just applying some common sense and how in general the legal liability and regulatory system works. Aren't there any number of products that one would find around any home that in theory at least are choking hazards for young children? What about kitchen items like knives? Pins and needles? Brightly colored containers with cleaning products? The list is endless. What about coins themselves? Watch batteries? Again, no expertise, experience or authority on the subject but unless the item is part of a child's toy or something intended or likely to be placed within reach of a toddler, I don't see a problem. Consider, surely the law does not require the manufacturer of every small item to contain a warning about chokinig. Where would you put the warning anyhow. If you can't get more authoritative advice elsewhere, suggest you contact the Fed. Trade Commission and/or the Product Safety Division thereof. They would be the final word on the subject if you could get an answer from them.
As to warnings and the legal effect thereof, a warning label does not eliminate the possibility of being sued. It only would merely serve to raise an extra hurdle for the plaintiff to succeed. I guess that is what I was trying to say.
LEFT THIS OUT: DO YOUR DUE DILIGENCE AS YOU ARE NOW BUT WHEN AND IF YOUR PRODUCT GOES TO MARKET, IF YOU REMAIN IN THE CHAIN OF SUPPLY (MEANING YOU HADN'T SOLD THE IDEA TO SOME BIG CORP FOR 20 MIL) YOU WILL HAVE A LIABILITY INSURANCE POLICY TO PROTECT YOU COME WHAT WILL.