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2-in1 Snug ‘n Secure swing; photo credit Consumer Product Safety Commission

Parents put their trust in the manufacturers of the baby products they purchase, believing the manufacturer has tested the products for all foreseeable uses and that the products will cause no harm. When a responsible manufacturer of baby products learns that its product is dangerous for foreseeable uses, it takes steps to minimize the damage involved, including by issuing product recalls.

In general, outdoor toddler swings are safe when used correctly and with supervision, unless a design or manufacturing defect is present. In 2017, Little Tikes recalled their 2-in-1 Snug ‘n Secure Pink Swing. In that particular case, there were about 140 consumer reports of the swing breaking upon use. Within those reports were also 39 reported injuries to children who suffered cuts, bruises, abrasions, and impacts to the head. Two of the injury reports included a broken arm.

The Little Tikes swing is not the only children’s product to be recalled.

Swurfer kiwi baby and toddler swing recall

Swurfer Kiwi Baby and Toddler Swing; photo credit Consumer Product Safety Commission

Some outdoor toddler swings on the market were recalled due to defects causing detachment of the swing rope and subsequent fall hazard. The U.S. Consumer Product Safety Commission (CPSC) reports that about 3,000 of the Swurfer Kiwi Baby and Toddler Swings were recalled. The defect involves an inadequate stopper at the bottom of the swing rope that keeps the swing in place. It can detach and cause a child to suddenly fall off the swing. Six of these incidents, without injury, have been reported so far. On the back of these recalled swings is the date code of August 2019.

Defective design, manufacture or instructions/warnings

A product can be defective or unreasonably dangerous as a result of design defects, manufacturing defects or defective instructions or warnings. A design defect involves an intrinsic flaw present in the product that renders it unreasonably dangerous even though it is made as intended.

A manufacturing defect is a product deficiency or imperfection that exists because the product is not made as intended.  It encompasses deficiencies or imperfections in the product itself or the packaging, labeling, or instructions.

Failure to adequately instruct and/or warn consumers of product dangers incident to reasonably foreseeable use of the product is a standard claim in product liability actions. Warnings may be required where a manufacturer has reason to know of product dangers that create unreasonable risks of injury or death.

What is the law in Virginia concerning product recalls?

The law is still developing regarding recall-related negligence actions, such as when a plaintiff alleges that the manufacturer should be liable for failing to timely recall a product voluntarily or for failing to participate adequately in an existing recall program. Some courts have held that absent some affirmative duty, such as government intervention or a statutory duty, there is no negligence action for a manufacturer’s failure to voluntarily recall a product. See e.g., Powell v. Diehl Woodworking Machinery, Inc., 198 F. Supp. Ed 628 (E.D. Va. 2016) (Va. law does not recognize duty to recall). Where a product manufacturer has failed to satisfy the terms of a government recall, a negligence cause of action has been recognized by courts outside of Virginia. While the question has not been addressed in Virginia, punitive damages may be recoverable for willful and wanton negligence for failure to follow a government recall. See Wallen v. Allen, 231 VA. 289 (1986).

Is evidence that a product has been recalled admissible at trial?

Under Virginia law, evidence of a product recall is admissible where the recall was mandated, regulated and enforced by law. The defect at issue must be the same defect that lead to the recall. Where the recall of a product is undertaken by the manufacturer voluntarily and not pursuant to statutory requirements, evidence of the recall will likely not be admissible at trial. This is an important distinction, because regulatory agencies like the Consumer Product Safety Commission often go to manufacturers and present them with the opportunity to “voluntarily” recall a product in conjunction with the CPSC in order to avoid a mandatory recall. It’s like an employer telling an employee that he or she may resign in order to avoid termination.

Product liability can be difficult to prove without effective and experienced legal counsel. These cases are often complex because multiple parties may be involved, including the designer and manufacturer, or others in the chain of distribution such as assemblers, distributors, suppliers, retailers, and wholesalers. The main challenges in these cases are identifying the defect, establishing the parties responsible for the defect, determining the correct causes of action for the case, and proving that the defect caused the harm.

At Phelan Petty, our experienced Richmond product defect lawyers understand the ins and outs of product liability cases. We work to prove how you or your loved one suffered physical, financial, and other damage from a defective product. If you need to pursue compensation for injuries your toddler suffered from a faulty outdoor swing or other product, give us a call today at 804.980.7100 or use our contact form.