Plato wrote “[t]he most effective kind of education is that a child should play amongst lovely things.” In the modern era, some lovely products grab a child’s attention and invite play, but the lessons learned may include injurious ramifications.
Several products are manufactured solely for use by adults. Are product warnings directing that children be kept away enough, or should a manufacturer anticipate that such warnings will not be heeded by responsible parents/guardians? Should products be manufactured that are safe for “unintended users,” i.e., children?
I recently represented a responsible manufacturer who did everything right. It made a machine for home use embossed with prominent warning decals stating that children be kept away when in use. Similar warnings were in the product’s User’s Manual. When not in use, the manufacturer directed that three separate steps be taken to turn off the machine, any one of which would have deactivated it. As you may have guessed, an unsupervised child was injured after playing on the left-on machine. In New Jersey, a parent usually cannot be held liable for negligence to their child. The lawsuit against the manufacturer essentially claimed that the machine was not child-proof, notwithstanding the status of an unintended user.
To prevail on a claim brought under the New Jersey Product Liability Act (NJPLA), a plaintiff must prove that the product “was not reasonably fit, suitable or safe for its intended purpose.” N.J.S.A. 2A:58C-2 (emphasis added). “Unintended purpose” necessarily includes an “intended user.” See, e.g., Metzgar v. Playskool, Inc., 30 F.3d 459, 463 (3d Cir. 1994); Griggs v. BIC Corp., 981 F.2d 1429, 1433 (3d Cir. 1992).
Many (but not all) courts refuse to hold manufacturers liable when children improperly use products intended for adults. See, e.g., Winnett v. Winnett, 310 N.E.2d 1 (Ill. 1974) (farming equipment manufacturer should not envision a child’s use); Borchert v. E.I. Dupont De Nemours & Co., 886 F. Supp. 629 (W.D. Mich. 1995) (manufacturer, whose product label warned against children using its flammable enamel reducer, was not liable for unsupervised child’s injuries); Jennings v. BIC Corp., 181 F.3d 1250, 1255-56 (11th Cir. 1999) (cigarette lighter was not defective for lacking child-proofing; defectiveness is measured by an objective standard of an ordinary consumer, not the subject perspective of a child); Hittle v. Scripto-Tokai Corp., 166 F. Supp. 2d 159, 170 (M.D. Pa. 2001) (“a lighter manufacturer does not intend that children will use its lighters; as such, a child is a reasonably obvious unintended user of a lighter”). As succinctly stated in Riley v. Warren Mfg., 688 A.2d 221, 229 (Pa. Super. Ct. 1997) (involving a farming machine), a directed verdict in favor of the manufacturer was appropriate “[b]ecause a child was never the intended consumer of the product and had no reason to come in contact with it.”
These cases also address foreseeability. Under New Jersey law, a manufacturer may be liable for product misuse injuries only if misuse was objectively (reasonably) foreseeable. See, e.g., Jurado v. W. Gear Works, 131 N.J. 375, 385 (1993); Port Authority v. Arcadian Corp., 991 F. Supp. 390, 400-01 (D.N.J. 1997), aff’d, 189 F.3d 305 (3d Cir. 1999). Misuse is objectively foreseeable when, “in light of the general experience within the industry when the product was manufactured, [the misuse] objectively and reasonably could have been anticipated.” Brown v. United States Stove Co., 98 N.J. 155, 168 (1984).
So back to my case. We moved for summary judgment, arguing that the manufacturer took multiple precautions: It had appropriate warnings against children being near the machine and had a three-fold means to prevent accidental activation by a child. There was no child supervision, nor compliance with the manufacturer’s warnings/instructions. Unfortunately, there also was no New Jersey case law on this issue. The Court “punted,” finding that a jury should determine whether the child’s accident was objectively foreseeable.
This sets bad policy. Should every single product be child-proof, including those solely intended for adult use, notwithstanding adequate warnings against a child’s use and a manner to deactivate and prevent such use? Should items like chainsaws include safeguards on the off-chance that unsupervised children might play with them? Is it even feasible? Are consumers willing to bear the added cost of such child protections, even though simple supervision and compliance with warnings and instructions will eliminate risks to children?
Hopefully, New Jersey law concerning an “unintended user” will evolve such that a manufacturer who takes the proper steps can avoid potential liability. A “child-proof” society is certainly a utopian goal, but it is impossible to achieve without child supervision. As Plato also wrote: “[n]o man should bring children into the world who is unwilling to persevere to the end in their nature and education.”
—Bennet Susser, Esq.