How FL Sovereign Immunity May Affect Your Wrongful Death Case
About 14,000 Infantino baby carriers were recently recalled due to a manufacturing defect in the product’s buckle, which could cause the child to fall out of the carrier.
The carriers were marketed at Amazon and Target and were sold from November 15 to December 20, 2019. Only lots sold on these dates have been recalled.
Fortunately, no injuries have been reported from the defective baby carriers.
What happens, though, if your child is injured by a recalled product?
Can you still seek damages through a product liability suit?
We help you answer these kinds of questions today by providing information on how product liability works, and how a product recall affects your ability to recover damages by filing a child injury claim.
Florida Product Liability Basics
If your child is injured by a defective product, you have the right to sue the responsible parties. Most likely, your defective product claim will include one or more of the following:
- Manufacturer;
- Distributor; or
- Seller
The responsible party will depend on the circumstances of the injury, and the type of defective product child injury suit. Essentially, there are three categories of defective product lawsuits:
- Defective design: The product has an inherently dangerous design, that would result in hazards even if the product was perfectly manufactured and used as intended.
- Defective manufacturing: The product was safely designed, but a manufacturing flaw in the specific product that injured your child made the product hazardous. This can apply to an individual product, or to a certain manufacturing lot.
- Failure to warn: The product’s packaging, instructions or marketing fail to warn of a risk of the product, which is associated with its intended use.
How Product Recalls Work in Florida
A manufacturer usually becomes aware of a widespread product defect either on its own or through a regulatory agency such as the Food and Drug Administration (FDA) or Consumer Product Safety Commission (CPSC).
In most cases, the manufacturer will issue its own recall, although should the manufacturer fail to do this, either the FDA or CPSC can issue a recall independently. The recall will instruct consumers how to have the product repaired or replaced, and will describe the danger of the defect.
You can check the Florida Department of Agriculture and Consumer Services website to determine if any of your child’s toys, school supplies or other products have been recalled.
How a Recall Can Affect Your Florida Child Injury Claim
So what happens if your child is injured by a defective product that’s been recalled? How does this affect your ability to seek damages?
In some courts, the product recall can be used as evidence to help establish that the product was defective. However, as the plaintiff you must still prove the common elements of a product liability case:
- The particular product that injured your child was defective
- The defect caused your child’s injuries
When Your Actions Negate Liability
On the other hand, if the defendant can prove that you knowingly used a product that was recalled, this can negate liability. Still, in this case, the defendant must be able to prove that you directly received notice of the recall, which warned you of the dangers posed by the product.
A generally disseminated recall, such as that issued on recall websites or covered by the media, is not sufficient to get the manufacturer off the hook for your child’s injuries.
It’s always prudent to keep an eye on product recalls so that you can ensure the products your family is using are safe.
However, if your child is injured by a recalled product, this does not affect your ability to seek damages, unless you were directly informed of the recall, and continued to use the product anyway.
About the Author:
Andrew Winston is a partner at the personal injury law firm of Winston Law. For over 20 years, he has successfully represented countless people in all kinds of personal injury cases, with a particular focus on child injury, legal malpractice, and premises liability. He has been recognized for excellence in the representation of injured clients by admission to the Million Dollar Advocates Forum, is AV Preeminent Rated by the Martindale-Hubbell Law Directory, enjoys a 10.0 rating by AVVO as a Top Personal Injury Attorney, has been selected as a Florida “SuperLawyer” from 2011-2017 – an honor reserved for the top 5% of lawyers in the state – and was voted to Florida Trend’s ”Legal Elite” and as one of the Top 100 Lawyers in Florida and one of the Top 100 Lawyers in the Miami area for 2015, 2016, and 2017.
