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The Dark Side of the Swimming Pool – Legal Claims Involving Child Injury or Death by Drowning

suicrosomiz: Images Of Kids PlayingSummer is here, and many are enjoying the swim season. However, if children are not properly supervised at the pool, summer-time fun can quickly turn tragic.

Drowning is the leading cause of injury death for children 1 to 4 years of age in the United States. (See HERE for 2017 National Safety Council statistics)

Top Causes of Injury Death to Children - 2009

Centers for Disease Control and Prevention / CDC Vital Signs: Child Injury

Many of these injuries and deaths from drowning are foreseeable, controllable, and preventable. Pool owners can prevent the tragic impact the death or injury of a child brings to a family by following a few simple safety rules, but too often, proper safety measures are not taken, resulting in tragedy. What legal recourse is available to parents whose child has suffered serious pool related injury or death?

The answer to this question depends on the ability to prove negligence on the part of the pool owner. If your child’s injury is a result of the owner’s failure to follow safety regulations, you may have a strong case. Unfortunately, it is harder to determine pool injury liability than one might think. There isn’t a published “list” of all safety rules that apply, and the standards/rules may vary depending on the location and type of pool. This is why you need a lawyer to research what standards/rules apply to your situation and to determine how to best present your claim to the insurance company or jury.

One body of regulations that relate to pool safety can be found in Chapter 511-3-5 of the Rules of the Georgia Department of Human Resources Public Health. These “pool rules” contain a variety of standards that may assist your attorney in identifying what the owner/operator of the pool in question might have failed to do that led to your child’s injury. For instance, the regulations address such matters as diving boards, jump boards, beginner’s areas, decks, bather load limits (the maximum number of swimmers that can safely be allowed in the pool at one time), and required inspection reports.

Another source of duties for pool owners/operators are city and county ordinances. These need to be identified and researched by your attorney and the standards they contain will vary from jurisdiction to jurisdiction.

If the pool where your child was injured had a lifeguard, another important set of standards/rules for proving pool injury liability is what is known as the “standard of care” for lifeguards. An investigation can uncover whether the lifeguard(s) were properly trained, certified, and whether they performed their duties on the day of the injury to the “standard of care.”

The most basic applicable “standard of care” for lifeguards involves a “two-fold duty” that all lifeguards must fulfill. This “two-fold duty” is first, to observe simmers for signs of distress. Second, if distress is discovered, to attempt a reasonable rescue. In cases of pool injury or drowning, the central issue is to prove whether or not the lifeguard(s) had any ability to discover signs of distress prior to the injury or drowning. If so, than the lifeguard is liable for the injury/death.

In addition, if the lifeguard was required to abide by written standard operating procedures created by the owner/operator of the pool, whether or not they followed these procedures provides additional evidence that will help your attorney prove that the negligence of the lifeguard was the cause of the injury/drowning.

Whatever your particular circumstances, the core issue in any swimming pool injury/death lawsuit is liability – whether or not it can be proven that the injury or death resulted from negligence on the part of the pool owner. An attorney can help you navigate the complexities of proving liability and presenting your case to the insurance company or jury, providing you and your child with clear legal options.

This is a short PSA reminding everyone that drowning is a leading cause of injury death to children ages 1 to 14 and that we all need to be aware and do all we can to prevent these tragedies –

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Attorney Pete Pearson practices personal injury law in Atlanta, Georgia and has a special interest in helping families of injured children. He is a father to nine and lives with his wife and children in Newborn, Georgia. His office is located in Conyers, Georgia. He can be reached directly at Six-Seven-Eight 358-2564. 

What Parents Should Know About Toy-Related Deaths and Serious Injuries

Trouble in Toyland is an annual exposé of dangerous toys released by U. S PIRG (Public Interest Research Group) Education Fund. For thirty-four years, the consumer watchdog group has identified toys on the market which it deems unsafe, sparking over a hundred and fifty recalls of such toys and providing parents with the information they need to protect their children from hazardous playthings.

Despite the successes of the U.S. PIRG Education Fund, many hazardous toys are still being sold and passed into the hands of our children. What legal options do parents have if their child has been injured by one of these toys?

In this post I will discuss legal options parents of injured children possess. I will start by highlighting some of the types of dangerous toys identified in the Trouble in Toyland report. Keep in mind that even if the type of toy that injured your child is not discussed here you still may have a viable legal claim. Hazards in toys and children’s products run the gamut from choking hazards created by toys with small parts, to strangulation hazards from cords on pull toys, to laceration hazards from edges that are too sharp, to toxic hazards posed by chemicals in toys. Injuries have been documented from all of these hazards.

The most recent edition of Trouble in Toyland identifies three types of toys parents should be aware of:

  1. Toys with easily identifiable hazards
  2. Toys with hidden hazards
  3. Toys that have been recalled but are still for sale

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  1. Toys with easily identifiable hazards

One type of hazard that is easily identifiable is annoyingly loud noises. Loud toys such as the Kicko Toy Gun Blue Light-Up Noise Blaster would fall into this category:

            Loud toys such as this one may be more than annoying – they may be damaging your child’s hearing.

Another type of identifiably dangerous toy is those that pose a choking hazard, such as these familiar little guys:

Of all toys, balloons are the leading cause of death by suffocation.

Other choking hazards include toys with very small parts that are easily detachable. Trouble in Toyland recommends using a toilet paper roll to gauge whether an object poses a choking hazard. If the object fits easily through the center of the roll, it is too small.

In addition to these hazards, toys designed for teens and adults can become hazardous if younger children get their hands on them. For example, small magnets can be a great toy for a teenager, but give them to a younger child and you are likely to end up with a trip to the hospital.

2. Toys with hidden hazards

The second category of dangerous toys covered by Trouble in Toyland are those that possess hidden hazards. These include toys, jewelry, slime, and makeup that are contaminated with toxins such as lead, cadmium, and boron. For example, some children’s jewelry contains excess cadmium which can be detrimental if ingested.

            It is toys like these that pose hazards which are invisible to even the most careful eye.

3. Toys that have been recalled but are still for sale

Finally, the Trouble in Toyland report cautioned parents to be careful about buying used and older toys, as these have sometimes been deemed too dangerous and recalled. You may even have some of these lying around your home. To identify recalled toys, check out THIS website.

The Trouble in Toyland report included many other helpful details in addition to the information I just covered. You can read the full report HERE.

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I’ve highlighted a few types of dangerous toys that can cause harm to children. Next I want to address what options a parent has if their child has been injured by one of these types of toys or any other toys that pose an unreasonable risk of harm.

Normally, a products liability claim is going to be the best option for parents. In Georgia, product liability is centered upon O.C.G.A. Section 51-1-11 which provides that the manufacturer of personal property sold as new is strictly liable to individuals who are injured by that property.

To establish a strict liability claim under this statute, a plaintiff must prove that (1) the defendant was the manufacturer of the product, (2) the product was defective when it left the control of the manufacturer, and (3) the product’s defective condition proximately caused the injury to the plaintiff.

In other words, to have a strong case, you must be able to prove fault on the part of the toy manufacturer. For example, if your child’s hearing is damaged by an overly loud toy, you may have a strong case because the manufacture is clearly at fault for the injury. On the other hand, if your child gets their hands on and swallows small marbles that are marketed strictly for teens and adults, I am afraid that you have no case. Since the manufacturer was marketing the marbles for teens and adults, not small children, they are not at fault for the injury. However, given different details, this scenario could make for a strong case. If the manufacturer’s advertising neglected to make clear what age groups the marbles were appropriate for, they are partially responsible for injuries resulting from small children playing with the product.

As you can see, many aspects play into whether a products liability claim is a viable option for you. A lawyer can help you navigate the details of your situation, but the basic idea is that you must be able to prove that the manufacture is at least partially at fault for your child’s injury.

While O.C.G.A. Section 51-1-11 is the basis for most products liability claims, there are other legal options open to a parent whose child is injured by a dangerous toy. A plaintiff can rely on negligence, strict liability, and warranty theories. Whatever the specifics of your child’s injury, a lawyer can advise you on what course of legal action to take.

The bottom line? If your child has been harmed by a toy and you believe there may be a basis for holding the manufacturer liable, please don’t hesitate to contact me. It costs you nothing and may benefit you a great deal.

Daycare Injury? Find Out How to Get Compensation

Daycares can be dangerous. 

Take a recent case of mine for example. I was hired by a young mother whose daughter had suffered a serious injury while in daycare. The little girl was playing on the floor in a class of 23 other children overseen by two teachers. While the teachers were preoccupied with directing the children from breakfast to playtime, a much larger child got too rambunctious and fell on the little girl’s left leg. 

The outcome? My client’s little girl went to the hospital with a fractured tibia. 

Like I said, daycares can be dangerous. 

If your child has been injured while in daycare, you may be wondering: “What legal options do I have? How does someone in my situation seek compensation?”

The answer to this question depends heavily on your particular circumstances. In the situation I described a moment ago, my client had a very strong case. However, this was not due primarily to the seriousness of the injury, but rather to the ability to clearly prove that the injury was a result of negligence on the part of the daycare. If your circumstances are similar, you may have a strong case as well.

Why Did My Client Have a Strong Case?

When my client first called me, I immediately advised her to file a complaint with the Georgia Department of Early Care and Learning, also known as Bright from the Start. This complaint would spark an investigation of the daycare, the findings of which would be incredibly important to my client’s case. As a daycare licensed by the state of Georgia, the center where my client’s daughter sustained her injury is required to meet state standards. If the daycare was not following state standards in the classroom where my client’s child was, then a clear line could be drawn from their rule-breaking to the child’s injury. The daycare would be clearly at fault for the incident.

As it turns out, this was the case. 

Bright from the Start requires licensed daycares to follow specific teacher:child ratios that vary based on the age of the children, as follows:

Under 1 year or under 18 months if not walking = 1:6

1 year and walking = 1:8

2 years = 1:10

3 years = 1:15

4 years 1:18

5 years = 1:20

6 years and older = 1:25

Bright from the Start’s investigation discovered that, on the day of the injury, the little girl’s classroom had a ratio of two teachers to twenty-four 2-year-old children. According to state regulations, an additional teacher should have been present. However, the daycare neglected to follow this important rule. Because of this, the two teachers that were present had their hands too full to keep close tabs on all the children. And as a result, my client’s daughter ended up with a fractured leg.

A clear line could be drawn from the daycare’s failure to abide by state standards to the injury that occurred. This fact made for a strong case as it clearly showed that the daycare was at fault. But there was an additional layer to the story. 

Bright from the Start records revealed that this same daycare had also been caught violating state standards on numerous past occasionsTheir records showed 11 previous violations of the staff:child ratio standards alone. This was a major boost for my client’s case as it proved a pattern of negligence on the part of the daycare. In court, a jury would likely see this pattern as grounds for punishing the daycare by awarding my client punitive damages on top of the general damages she would have already received. For this reason, the daycare’s insurer made an offer on the case we couldn’t refuse, and my client received considerable compensation.

How does all this relate to YOU?

If your child was injured while in daycare, it is possible that the fault can be traced to the childcare center’s negligence in following state standards. If so, you may have a strong case. However, to prove negligence, the incident must be investigated, which is why it is very important that you file a complaint with Bright from the Start (Georgia Department of Early Care and Learning). You can get more information about how to file a complaint HERE.

After filing a complaint, get in touch with an attorney. An attorney can help you navigate the complexities of your situation. Maybe the daycare is clearly at fault and in violation of state standards (of which there are many, as you can read about HERE). Or maybe your daycare is exempt from licensure and is not required to follow state standards, which you can read about HERE. Whatever the details of your case, an attorney can help you navigate the many aspects of daycare injuries, providing clear expertise on the legal options available to you and your child.

I have been representing children in accident cases for over 24 years. My office is located in Conyers, Georgia and I meet with clients all over metro Atlanta (hospital, home visits, wherever is best for you). The best way to reach me is by text or voice at Six-Seven-Eight 358-2564.

Atlanta Personal Injury Attorney Specializing in Child Injury – Pete Pearson

Teenage Car Injury Death – Legal Claims

Car accidents are the leading cause of injury death for 15-19 year old children in the United States. 

Top Causes of Injury Death to Children - 2009

 

Source:

Centers for Disease Control and Prevention / CDC Vital Signs: Child Injury (2009 statistics)

Teenagers and Driving – Automobile accident claims

Sometimes teenagers are UNFAIRLY blamed for an auto accident. There is a tendency to blame teenagers for doing something wrong whenever they are involved in a crash.

Sometimes the police don’t listen to what the teenager says.

Sometimes the teenager doesn’t know how to communicate the truth of what happened. Being hurt, they just don’t get the chance to share their side of the story.

Being charged for causing a car accident can have big consequences for a teenager.

It is important to have an attorney on your side early in the process

I represent teens who have been injured in a car accident due to the fault of another.

But sometimes fault is not crystal clear at the start of a legal claim.

Gathering evidence, interviewing eyewitnesses, talking to the investigating officers – all of that needs to happen in the days and weeks immediately after the crash.

The insurance company for the at-fault driver will have their investigators and lawyers working already – your child needs to have a lawyer to level the playing field.

If your teenage child has been seriously hurt in a car crash, text or call me before you talk to the insurance company.

I have been representing children in auto accident cases for over 24 years. My office is located in Conyers, Georgia and I meet with clients all over metro Atlanta (hospital, home visits, wherever is best for you). The best way to reach me is by text or voice at Six-Seven-Eight 358-2564.

Atlanta Personal Injury Attorney Specializing in Child Injury – Pete Pearson

Legal Strategies to Minimize (or avoid) Court Involvement in Georgia Child Injury Settlements

The reach of the government into our lives runs deep. Requiring court approval of minor (child) settlements illustrates how deep government may intrude into the minutia of our family lives.

The problem is twofold. Our civilization is legislating itself to death and thus each year brings new encumberances to every sphere of life. Layer after layer of laws/regulations/intricacy keep being added to the law books. The second part of the problem is that sadly some parents need parenting – there are those who are would steal from their own children. Government is all too eager to play the parent. Of course the rest of us pay for the villainy of delinquent parents – in the form of increased government interference with the intimate details of all families, not just those who need oversight.

Enough political philosophy. What are the nuts and bolts of avoiding (or at least minimizing) court involvement when parents are ready to settle their child’s injury claim?

Let me sketch out the law in Georgia as it pertains to settling a child’s personal injury claim. This issue normally comes up after you or your attorney have been negotiating with the insurance company that insures the at-fault party.

You may have arrived at a settlement figure you believe is fair to your child and your family. You want to settle and you would prefer to do so now rather than later. But the insurance company (or your attorney) starts explaining that it’s not so simple. They may start talking about “minor guardianships,”  “conservatorships,” “pro ami or fairness hearings” and the like. At this point in the process it dawns on you that the system is horribly complicated and if you are discerning you will also be having the realization all of the complication has a subtext: the courts don’t trust you with your child’s money.

[A bit more political philosophy, because I can’t resist: my opinion is that the courts ought to stay out of the business of meddling in family’s affairs and that parents have fundamental rights to make decisions about their children and in fact, absent extraordinary circumstances, the courts lack jurisdiction over these family matters. I see the need for intervention on occasion (if the parents are documented child abusers, for instance) but I do not see the need for a default rule that essentially requires ALL parents be treated like criminal suspects.]

So you have arrived at a fair settlement figure. Under what circumstances must you petition a court for approval to consummate the settlement?

The answer is a function of what the Georgia legislature has decided to call the “gross settlement” amount and that is defined as “the present value of all amounts paid or to be paid in settlement of the claim, including cash, medical expenses, expenses of litigation, attorneýs fees, and any amounts paid to purchase an annuity or other similar financial arrangement.” O.C.G.A. Section 29-3-3(a).

If your child’s proposed “gross settlement” is $15,000.00 or less current Georgia law allows a natural guardian (which is a term I will define in a moment) to settle the claim without court involvement.

Georgia law provides that each parent of a minor is a natural guardian, except that, if the parents are divorced and one parent has sole legal custody of the minor, that parent is the sole natural guardian. If the divorced parents have joint legal custody, they both remain natural guardians. If one parent dies, the sole surviving parent is the sole natural guardian, even if the parents were divorced and the deceased parent had sole legal custody. For purposes of determining who is the natural guardian, the mother of a minor born out of wedlock is considered the sole parent and natural guardian of the minor, unless the father has legitimated the minor.

Note this: if a minor has no natural guardian (regardless of the value of proposed settlement), the creation of a conservatorship and appointment of a conservator will be necessary. A conservatorship is a legal relationship, created by Order of a court with proper jurisdiction, between a conservator and a minor (much like that of an agent or trustee). Under Georgia law, Probate Courts have exclusive jurisdiction over the creation of conservatorships and appointment of conservators.

To sum up what has been said up to this point about court’s involvement in minor settlements – so long as there is a natural guardian, no court involvement is required on child injury claims that settle for $15,000.00 or less.

Does that mean you can do whatever you want with the $10,000.00? Absolutely not. You have a legal and moral obligation to hold and use all of that sum for the benefit of your child and you can be held legally accountable if you ignore those obligations. See O.C.G.A. Section 29-3-1(b).

Next we need to consider the rules for what is required if the “gross settlement” amount exceeds $15,000.00. Natural guardians are also given authority to settle claims on behalf of the minor when the gross amount exceeds $15,000.00 but the net amount to be recovered is less than $15,000.00; however, court approval of the settlement is required. This is where things start to get complicated.

An example may help clarify the difference between “gross settlement” and “net amount to be recovered.” Suppose you are prepared to settle your child’s injury claim for the sum of $100,000.00. The attorney’s fees are 40%, or $40,000.00. The expenses of litigation are $10,000.00. The medical bills that must be paid are $40,000.00. The “net amount to be recovered” is $10,000.00.

In the example I have given, since $10,000.00 is less than the $15,000.00 threshold set by law, you can settle your child’s claim without a conservatorship but you must petition the court for approval to settle. The court will conduct a pro ami or fairness hearing to hear evidence regarding the fairness of the settlement.

Now suppose that in the example above all the medical bills were paid by your health insurance. Suppose you had no medical bills to pay out of your child’s settlement. That change to the example would mean that the “net amount to be recovered” would be $50,000.00. If you settle the claim without first considering the available legal strategies to minimize court involvement, you will be required to seek court approval and a conservatorship will have to be created. This will mean substantial delay, significant expense, and years of required reporting to the Probate court.

What could we do to “fix” the second example above and minimize court involvement? One solution would be a structured settlement. Prior to settlement of your child’s injury claim you could agree that $40,000.00 of the settlement will be placed in an annuity set to mature when your child turns 18 or 21 or some other age above the age of majority. A structured settlement is advantageous because it is one way of reducing the “net amount to be recovered” to $15,000.00 or under. If you can reduce the “net amount to be recovered” to $15,000.00 or under you still have to petition the court for approval of the settlement but no conservatorship is required.

Of course, the down side of a structured settlement is that there is less cash up front. This trade-off may or may not be worth it, depending on your circumstances.

What if you decided not to do a structured settlement in the second example above? Well, a conservatorship will be required. What is involved with setting up a conservatorship? The basic process is: a petition for conservatorship may be filed in the county where the minor is found or in the county of the domicile of the proposed conservator. The petition for conservatorship that involves the property of a non-resident minor may be filed in the county where the Georgia property of the minor is located. Under certain circumstances, notice must be given to various parties. After the filing of a petition and the giving of the notice, the court may hold a hearing, and the standard for determining all matters in issue shall be the best interest of the minor. A bond often is required.

Once a conservatorship is created by Court order and a conservator is appointed, the real work begins: By the appointment the conservator becomes a fiduciary entrusted with the management of the funds and property of your child. Your duties will include preparing and filing an inventory and an asset management plan, annual returns (accounting), tax returns, petitions for leave to encroach (if there is a need to spend some of the principal of your child’s settlement), and a petition for final settlement of accounts and discharge from office and liability (when your child turns 18.)

In other words, a conservatorship means the court is in charge of your child’s money and your role (if you are appointed to be the conservator) is to carry out the court’s directions.

To sum up, the conservatorship rules create a presumption in favor of conserving your child’s assets until they reach the age of majority. It is costly and time consuming to request court approval of spending that is outside whatever directions the court gave you when you were appointed conservator. You are not allowed to use your discretion about how to use the settlement funds to benefit your child; the courts are given the discretion. If you run afoul of the discretion of the court, you may be personally liable.

I have indicated that use of a structured settlement is one legal strategy to minimize court involvement with your child’s settlement. Other strategies exist. When multiple family members are injured in the same incident your attorney may be able to negotiate an apportionment of the settlement funds that avoids the need for a conservatorship. Under some circumstances this strategy can also allow you to avoid the requirement that a court approve the settlement.

If your child will need future medical treatment related to the injuries, you may want to consider pre-paying for the future services and thereby reducing the “net amount to be recovered.”

Other strategies exist that won’t be discussed here because they might jinx negotiations with an insurer. Contact me privately to discuss how to best protect your family.

Keep in mind that the insurance company has to be convinced to assent to the details of your child’s settlement and they have their own interests to protect. They may object to the way in which you wish to proceed. This aspect of settlement negotiations can be greatly aided by the persuasive skills of an attorney.

Resources:

http://www.georgiacourts.org/courts/probate/ware/minor_guardianship.shtm

http://law.onecle.com/georgia/29/29-3-3.html

Inadequate Minor Settlement – Not Enforceable Until Judicial Approval

What are your options as a parent if you agreed to take a settlement offer made by an insurance company but no judge has yet approved the settlement and you have just realized the offer is too low?

Georgia law contains a safety net for you, if you find yourself in that situation. O.C.G.A. § 29-3-3 establishes that no settlement for a minor in excess of $15,000 is enforceable without judicial approval.  

If the offer to settle your child’s claim was greater than $15,000.00 your agreement to accept that amount is not legally binding because you did not have legal authority to accept it. A parent may accept such an offer ONLY AFTER a judge reviews and approves the proposed settlement.

Typically the way this issue comes up is when a parent has been trying to negotiate with an insurance company without having an attorney. Often when an attorney does get involved it is because the parent realizes something is not right. Sometimes a judge will tell the parent they need to consult with an attorney about the adequacy of the settlement.

With minor settlements, the “guardian” is normally the parent. That is the language the probate court uses to refer to the person who is requesting the legal authority to compromise (aka settle) a minor’s claim.

Parents are sometimes left in the dark by insurers with regard to important issues that effect how much would be fair compensation for their child. There may be an issue of the parent not knowing the extent of the future treatment their child will need. Another common issue that gets overlooked is the subrogation/reimbursement rights of health insurance and employee funded ERISA health plans. More often, the parent is simply misled by the insurer with regard to the reasonable settlement value.

You may be facing a motion to enforce the purported settlement. A motion to enforce asks a judge to force you to take a purported settlement based on the legal theory that you previously agreed to settle all your child’s claims. The problem with such an argument is that Georgia law does not give the right to settle a child’s claim to the guardian. That right belongs to the Courts alone. Only after the Court confers authority can a guardian enter into a binding settlement. Until judicial review and approval occurs there can be no enforceable settlement.

Incidentally, I have argued elsewhere that the Courts have assumed too much power over family life. I’m an advocate for scaling back the jurisdiction of courts over family matters. But the law as it exists in Georgia at this time clearly puts the power of settlement in the judges’s hands.

If you find yourself in this situation, please call me to discuss.

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Attorney Pete Pearson has been working for injury victims for 20 years. Located in the Greater Atlanta Metro Area, he serves clients all over the State of Georgia. He has a sub-specialty in child injury law. You can talk to Attorney Pearson for a free initial consultation by clicking here or by calling him at Six-Seven-Eight 358-2564.

 

 

 

How Do I Get My Doctor To Help Me Document The Full Extent Of My Child’s Head Injury?

The head is the most common body region injured in motor vehicle crashes for children age birth to seven years and head injury outcome in children can be worse than similar injuries sustained by adults.

Children who suffer traumatic brain injuries (TBIs) can experience lasting or late-appearing neuropsychological problems. For this reason, head injuries should be of particular concern to parents of children injured in motor vehicle traffic crashes. Proper diagnosis and treatment is critical. So is marshalling the legal evidence necessary to prove the link between the crash or other trauma and your child’s deficits. Proving future deficits is one of the most vexing issues that arise in child head injury cases.

In children, some neurological deficits after head trauma may not manifest for many years. Consider that frontal lobe functions develop relatively late in a child’s growth, so that injury to the frontal lobes may not become apparent until the child reaches adolescence when higher level reasoning develops. Since the frontal lobes control social interactions and interpersonal skills, early childhood brain damage may not manifest until such frontal lobe skills are called into play later in development. Likewise, injury to reading and writing centers in the brain may not become apparent until the child reaches school age and shows signs of delayed reading and writing skills.

How can you obtain compensation now for deficits that may not show up until many years later? How can you prove now what may happen later? Head injury legal claims are challenging precisely because of these kinds of considerations.

The standard for admitting evidence on considerations of this nature is “a reasonable degree of medical certainty.” Your child’s doctor must be willing to testify to a “reasonable degree of medical certainty” that the trauma sustained by your child caused or will cause the future deficits. What does this phrase “a reasonable degree of medical certainty” mean?

It’s been observed that the phrase is almost an oxymoron. Normally the word “certainty” means certain. But the adjective “reasonable” negates the absolute connotation of the word “certainty.” But if you push past the awkwardness of the phrase to how it is employed in the courtroom it makes more sense. In actual trial practice the evidentiary standard is “more likely than not” or “more probable than not.” This is a lower standard of proof than certainty and also lower than the “beyond a reasonable doubt” standard (which is the standard used to convict a defendant in criminal cases). Essentially the standard is whether your doctor can say that it is “more likely than not” that the trauma will cause your child to suffer a particular deficit in the future.

Many medical doctors don’t understand what I said in the last paragraph. They don’t want to get involved with a legal claim unless there is overwhelming proof that the trauma caused a deficit. They in effect think there must be enough evidence to prove it “beyond a reasonable doubt.” They are not aware of the correct legal standard. This is unfortunate as it results in many families not getting enough compensation to provide for the future care of their injured child.

I talk with my client’s doctors before they give any testimony and educate them on the correct standard of proof. I ask them to tell the truth, no matter what that may be. I request that they review their treatment of the child with an eye toward helping the family prove all related deficits that have or may flow from the trauma. I encourage them to understand that the law only allows the family “one bite of the apple”, one chance to get justice, and that when the legal claims ends they can never reopen the case even if it turns out their child has far more profound deficits than we proved.

If your child has suffered a head injury, you are dealing with one of the most complex and challenging of all claims. You would benefit greatly from talking to an attorney. There are many related issues that arise in the context of child TBI claims that are not for the uninitiated. Please call me if, due to the fault of another, your child has sustained a brain injury. The call is free, you are under no obligation to hire me, and I will do my best to point you in the right direction.

Sources: http://www-nrd.nhtsa.dot.gov/Pubs/811325.pdf

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to seven and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

 

Georgia Pool Rules – Child Injury in Swimming Pools, Spas, and Recreational Water Parks

I’ve just reviewed Georgia’s “pool rules”, a scintillating read.

The Georgia Department of Public Health (DPH) promulgates rules that apply to most swimming pools, spas and recreational water parks. The goal of the DPH rules is to minimize illnesses and injuries at these facilities.

Why would I spend a perfectly good afternoon reading a 50 page regulation? For you, my dear readers, for you.

Parents of children who have been injured come to my blog looking for information. I want to provide the information parents need to make a decision about whether legal action is proper. I also want to provide parents with the best legal analysis of Georgia’s “pool rules.”

Every legal claim starts with an analysis of what duty was violated. There has to be a violation of some duty or there is no legal claim. It’s imperative to discover what duties apply. In the context of child injuries that occur in or near water, one important source of duties is the State you live in. In Georgia the State agency that is tasked with oversight of pools, spas, and recreational water parks is DPH and a working knowledge of the rules made by that agency will help you discover what duties might apply to your situation.

(Keep in mind that DPH is not the ONLY source of duties that might apply to your situation. Many Georgia counties have county pool regulations. If you want to know if your county has county-specific regulations, you can find out here (if your county is in white it has county-specific regulations that go beyond the State regulations). Federal law creates other duties (such as the Federal Pool and Spa Safety Act of 2007).

The rules and regulations created by DPH are long and complex. Most folks are not going to wade through them. Please consider this my effort to provide you with a crash course in water safety. I won’t hit upon every single rule but I will highlight those I think are most significant.

Before I jump in to details, let me alert you that the DPH rules are limited in scope – they do not apply to every body of water now existing in the State of Georgia. Some are expressly exempt: such as private pools and hot tubs/spas, apartment complex pools, country club pools, subdivision pools that are open only to residents of the subdivision and their guests, and there are a few other categories of pools/spas/baths that fall outside the scope of the application of DPH rules.

DPH rules DO apply to all other swimming pools, spas, and recreational water parks located within the State of Georgia. The rules prescribe minimum design, construction, and operation requirements that are intended to safeguard the health and safety of the public.

Here is my list of important rules that may create a legal duty and the violation of which may provide a basis for a successful legal claim:

  • Barrier Hazards – All outdoor swimming pools and spas shall be provided with a barrier. A barrier is a fence, wall, building wall or a combination thereof, which completely surrounds or covers the swimming pool or spa and obstructs access to the swimming pool, spa or recreational water park. One safety purpose of a barrier is to keep unsupervised kids out. The top of the barrier must be at least four feet high. All access gates must be self-latching. Pedestrian access gates must also be self-closing. When the release mechanism of the self-latching device is less than 4.5 feet from the bottom of the gate the mechanism must be located on the pool side of the gate and the gate and the barrier shall have no opening greater than one-half inch within 18 inches of the release mechanism (to keep little hands from reaching through). Installation of a safety cover over the pool does not exempt a pool operator from erecting a barrier. Installation of a safety cover over a spa DOES exempt the operator from the provisions of the barrier requirement.
  • Bather Load Violations – this has to with how many bodies are allowed in the pool at one time. The rules are a function of “square feet per user”. For instance, for pools with minimal deck areas (which means smaller than the pool surface area) the maximum number of people allowed in the pool at one time varies depending on what part of the pool you are considering. For shallow or wading areas there must be 18 square feet per bather. For the deep area there must be 20 square feet per bather. And for the diving area there must be 300 square feet per bather. Spas are handled differently: the maximum bather load should not exceed one person per nine square feet of surface area.
  • Permitting Violations – it is unlawful for a pool to operate without a valid operating permit. Permits are invalidated by a change in ownership. An operating permit cannot be valid for longer than twelve months. The permit must be prominently displayed as close to the main entrance as practicable.
  • Structural Design Violations – slip resistant surfaces are required in the pool and on the deck surfaces near the pool (all ladders/steps in and out of pools shall have treds with slip resistant surfaces), spas shall have handrails, abrasion hazards must be avoided, decks shall be sloped to prevent water pooling (minimum slope of decks must be 1/8” per foot, return inlets and suction outlets must be designed to not to constitute a hazard to bathers (bather entrapment is the concern).
  • Dimensional Design Violations – beginner’s areas may not adjoin deep areas, transition points between shallow and deep sections of pools must be visually set apart with a rope and float line, depth markers, and a four inch minimum width row of floor tile, painted line or similar means of a color contrasting with the bottom. Diving areas in pools shall conform to minimum water depths, areas, slopes and other dimensions.
  • Water temperature hazards – the owner/operator is required to routinely check the water temperature to ensure it does not exceed 104 degrees Fahrenheit. Obviously what is in view here is mainly spas and heated pools.
  • Warning Signs – various requirements for signage at pools and spas. Risk of fetus damage (hot water exposure in spas), risk of damage to small children and pregnant mothers (small children and pregnant women have lower hot water exposure limitations), risk of drowning warnings, risk of injury, risk of electric shock if electrical appliances are used in or near water or facilities are used during lighting storms. The words “No Diving” shall be permanently visible at the edge of the deck for water five feet (5′) or less.
  • Chemicals in the Pool/Spa – The rules provide for minimum and maximum dilution rates for the chemicals used in pools and spas. Too little disinfectant and harmful organisms may be present in the water, too much and bathers can be harmed/burned. There is a section on “fecal incidents” (poop in the water) and the rules require the pool be shut down for a period of time to ensure no diseases (such as Giardia infection) are spread.
  • Handholds, depth markers, rope and float lines – a handhold means a device that can be gripped by a user for the purpose of resting and/or steadying him/herself. Handholds are required around the perimeter of pools in areas where the depths exceed 3 feet 6 inches. Depth markers must be plain and conspicuous and there are a number of specific requirements for how and where they must appear.
  • Lifeguard training requirements & qualifications – If lifeguards are provided they must hold up to date, nationally recognized certification. They are responsible for the safety and supervision at the pool, spa, or recreational water park.
  • Lifesaving  equipment – requirements include, but are not limited to, a pole not less than 12 feet long, including a body hook; a throwing rope to which has been firmly attached a ring buoy; a telephone which is hard wired and affixed (not a cell phone) with posted names and numbers for emergency personnel.
  • Specials rules applying to water slides, flumes, wave pools, wading pools, zero-depth pools, falling-entry pools, etc . . . this section of the rules concerns recreational water parks. The rules in this area vary greatly depending on the type of water activity and so it is hard to summarize. Suffice it to say the owner/operator of a recreational water park has a duty to make sure staff closely monitor these activities. Wave pools that generate waves more than 3 feet in height must not continue for more than 15 minutes at a time. At all times when a water slide is open an attendant must be on duty at each falling-entry pool or runout and another attendant must be on duty at each entrance to a flume. Radio communication or some other acceptable communication method must be maintained at all times between the attendants. Only one person at a time may go through a flume on a water slide.
  • Inadequate training of pool manager/operator – it is required that each pool and spa covered by these rules be maintained by properly trained individuals. One kind of training that qualifies is the National Swimming Pool Foundation’s Certified Pool/Spa Operator’s Course.

So, if your loved one has been injured or killed and you believe one or more of the rules I’ve discussed in the post were broken, please call me. A phone consultation is free. The advice I give may be a help to you as you weigh your legal options.

Also, I’ve previously blogged about this topic and if that is of interest to you, you can find it here.

Sources –

Georgia Department of Public Health

Georgia Pool Rules

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. Many years ago, in what seems like another life, Pete was a lifeguard. His interest in water safety probably got its start way back then. He is a father to seven and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

 

Child Injury Claims in Georgia – Toxic Mold

The number of legal claims for toxic mold exposure exploded between 1990 and 2000. In recent years the number of suits filed has fallen. Recent claims, however, have included significant victories for the injured.

Toxic mold can create serious health issues. It hits children the hardest. One type of toxic mold, Black Mold, may be linked to a serious lung condition in infants, called Idiopathic Pulmonary Hemorrhage, or IPH. The formal name for Black Mold is Stachybotrys chartarum (or Stachybotrys atra).

Children who are exposed to toxic mold for a prolonged time can develop reactive airway disease, including the development of asthma[1], allergies and respiratory disease, wheezing, coughing and difficulty breathing. fatigue, headache, cognitive impairment, and central nervous system problems. There have been infant deaths linked to excessive exposure to toxic mold.

When a child becomes sick and the suspected cause is toxic mold, a number of steps need to be taken quickly:

Take pictures of the mold.

Mold tests are imperative. A kit can be purchased online.

Find a consultant to test the building for mold.

If legal action might be necessary, lining up expert testimony is essential. The right expert can make the difference between failure and victory. An expert opinion will be required in most cases in order to survive a motion to dismiss (or a summary judgment motion). Examples of experts that have testified in past mold cases include mycologists, microbiologists, environmental and occupational medicine board certified physicians, and neuropsychologists.

Prospective defendants in these lawsuits are insurance companies, architects, engineers, builders, remediation companies, landlords, manufacturers, repair services, and home sellers.

Starting around 2003 the insurance industry adopted mold exclusions and since 2003 virtually all property and liability policies have come to contain mold or fungus exclusions. This industry shift creates a challenge to making a recovery on toxic mold claims. Creative lawyering is essential to success. One strategy that works for some claims takes advantage of the fact that water leaks are a primary cause of mold growth. Water leaks are generally covered by insurance. If it can be proven that the mold that harmed your child was caused by a water leak that is a covered loss, the insurance company may be responsible for the injuries caused by the mold. Another possible approach is when a water leak occurs and the home owner puts the homeowner’s insurance on notice and the insurance company fails to process the claim (and remediate the problem) or delays the processing of the claim and mold grows, the insurance company may be responsible for the harm to your child’s health caused by exposure to toxic mold.

Another important consideration is that if the defendant responsible for the building has substantial assets, it may not matter whether there is insurance coverage.

Toxic mold cases are expensive to bring and win. For that reason there must be significant damages (high medical bills or permanent impairment) before you and an attorney can justify the costs of bringing a claim.

There are many variations on a successful toxic mold claim. Here are a few examples from recent cases:

Former Los Angeles Lakers Coach Ordered to Pay $250K in Punitive Damages

Bardack v. Tomjanovich, Los Angeles County Superior Court Case No. SC10185

Former Lakers coach Rudy Tomjanovich and his wife were ordered in 2012 to pay $250,000 in punitive damages, on top of nearly $3 million in compensatory damages, to a money manager for selling him a Pacific Palisades home replete with water leaks and mold.

Six Figure Verdict Against Landlord

Cohen v. Fox Management, Inc., Multnomah County Circuit Court Case No. 1010-1453

In 2011, an Oregon jury returned a verdict of $103,000, plus attorneys’ fees, against a property management company. The plaintiff, a radiologist, had rented a home managed by the defendant. When a water leak occurred in a stairwell, plaintiff advised the defendant property management company. Despite the complaint, no repairs were made and a strong musty odor developed. Plaintiff suffered eye irritation, headaches and allergy symptoms. Eventually the tenant hired an indoor air quality expert who found multiple building defects and excessive indoor humidity levels. Plaintiff was forced to move from the house.

New York Appellate Case permits case to proceed against Landlord for liability in mold case

Cornell v. 360 W. 51st St. Realty, LLC, 939 N.Y.S.2d 434 (2012)

In 2012, a New York appellate court held a tenant was not barred from pursuing a personal injury claim based on exposure to toxic mold. Prior to this decision, it was generally presumed that under New York precedent tenants were barred from attempts to prove causation under the Frye test (an evidentiary rule) in mold cases. The Frye test requires that claims of injury which must be proven by expert testimony be based on generally accepted scientific principles. In an earlier New York case, the Court effectively concluded that the Plaintiff could not show that his injury was caused by mold exposure because the theory that mold caused such injuries was not generally accepted.

[1] Mold exposure during infancy increases asthma risk. In August 2012, the University of Cincinnati published a study in The Journal of Allergy and Clinical Immunology concluding that exposure to three species of mold common to water-damaged buildings during infancy was associated with childhood asthma. These forms of mold—Aspergillus ochraceus, Aspergillus unguis and Penicillium variabile—are typically found growing in water-damaged homes. The study concluded that there is a statistically significant increase in asthma risk at age seven associated with high mold levels in a child’s home during infancy.

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

Toy-Related Deaths and Serious Injury

Just before Christmas 2013 the U.S. PIRG (Public Interest Research Group) Education Fund released its annual exposé of dangerous toys, Trouble in Toyland. The consumer watchdog group identified 24 toys on the market which it deemed dangerous.

It is now February of 2014 and despite the efforts of the U.S. PIRG Education Fund many of these toxic toys have been sold and passed into the hands of our children. What legal options do parents have if their child has been injured by one of these toys?

In this post I will discuss legal options parents of injured children possess. I will start by highlighting some of the more dangerous toys identified in the Trouble in Toyland report.

Keep in mind that even if the toy that injured your child is not discussed here you still may have a viable legal claim. Hazards in toys and children’s products run the gamut from choking hazards created by toys with small parts, to strangulation hazards from cords on pull toys, to laceration hazards from edges that are too sharp, to toxic hazards posed by chemicals in toys. Injuries have been documented from all of these hazards.

The most common toy-related child injury is choking and the most common causes of choking are small toy parts, small balls, marbles, and balloons. Federal law bans small parts in toys for children under three and requires a warning label on toys with small parts for children between the ages of four and six.

Regulators use three factors to determine whether a toy is intended for children under three years old, including the manufacturer’s stated intent in the age labeling; the advertising and marketing of the product; and if the toy is “commonly recognized” as being intended for a child under three years old. Some items commonly recognized for children under three include squeeze toys; teether toys or articles that are affixed to a crib, stroller, playpen, or baby carriage; pull and push toys; bathtub, wading pool and sand toys; and stuffed animals.

So how do government regulators determine if a toy part is small enough to be banned (or to require a warning label for children 4-6)? Regulators use a choke test cylinder (sometimes it is called a “small parts cylinder”) and below you can see a schematic that shows the dimensions of the cylinder:

Choke Test Cynlinder

The choke test cylinder has an interior diameter of 1.25 inches and a slanted bottom with a depth ranging from 1 to 2.25 inches. This cylinder is designed to approximate the size of a fully expanded throat of a child under three years old. If a toy or part of a toy – including any parts that separate during “use and abuse” testing – fits inside the test tube, the product is a choking hazard and is banned for children under the age of three.

Here is a photo of a choke test cylinder in use testing a product:

Choke Test Cylinder

I said I would start by highlighting some of the more dangerous toys identified by the Trouble in Toyland report. Toys which were deemed dangerous and which may cause choking in children include:

  • Product name: Princess Wand
  • Label on toy: None
  • Type of hazard: Choking
  • Why toy is a problem: A small heart that fits inside the small parts cylinder detaches easily.
  • Manufacturer/Distributor: Greenbrier International
  • Store: Dollar Tree
  • Image:

Princess Wands

  • Product name: Bead Kit
  • Label on toy: 5+
  • Type of hazard: Choking
  • Why toy is a problem: No small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Greenbrier International
  • Store: Dollar Tree
  • Image:

Bead Kit

  • Product name: Littlest Pet Shop- #2744 Horse
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: Bottom half of pony easily detaches and fits within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Kmart
  • Image:

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As you can see below, the pony fails the choke cylinder test:

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  • Product name: Littlest Pet Shop – Candyswirl Dreams Collection #3313
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The bottom of the toy animal easily detaches and both the head and bottom fit within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Wal-Mart
  • Image:

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  • Product name: Littlest Pet Shop – Sunil Nevla
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The bottom of the toy animal easily detaches and fits within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Wal-Mart
  • Image:

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  • Product name: Littlest Pet Shop- Seal and Dolphins
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The round head of the seal easily detaches and barely passes the small parts test but fails the small ball test*.
  • Manufacturer/Distributor: Hasbro
  • Store: Kmart
  • Image:

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*Note explaining my reference to the “small ball test” above. In 1994 the federal government established a test for small balls which is more restrictive than the 1.25 inches in diameter small parts test (for which they use the choke test cylinder discussed above). Balls with a diameter smaller than 1.75 inches are banned for children under three years old. Federal law defines a ball as “any spherical, ovoid, or ellipsoidal object designed or intended to be thrown, hit, kicked, rolled, dropped, or bounced.” In addition, the term “ball” includes any multisided object formed by connecting planes into a generally spherical ovoid, or ellipsoidal shape that is designated or intended to be used as a ball.

  • Product name: Gobble Gobble Guppies
  • Label on toy: 2+
  • Type of hazard: Choking
  • Why toy is a problem: The round fish are bigger than choke tube but smaller than small ball tester.
  • Manufacturer/Distributor: SwimWays
  • Store: Kmart
  • Image:

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  • Product name: Super Play Food Set
  • Label on toy: Statutory Small Parts Warning
  • Type of hazard: Some food objects are small parts—other rounded food objects are bigger than choke tube but smaller than small ball tester.
  • Why toy is a problem: Toy food poses a special hazard because it looks as if it should be eaten
  • Manufacturer/Distributor: Geoffrey LLC
  • Store: Toys-R-Us
  • Image:

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  • Product name: Fisher-Price Loving Family Outdoor Barbeque
  • Label on toy: 3+
  • Type of hazard: Choking
  • Why toy is a problem: The toy has circular near small part and also looks like something that should be eaten.
  • Manufacturer/Distributor: Mattel
  • Store: Kmart
  • Image:

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  • Product name: Punch Balloons
  • Label on toy: Statutory balloon warning; 5+
  • Type of hazard: Choking
  • Why toy is a problem: Balloons are dangerous for children under 8, but this toy is labled for 5+
  • Manufacturer/Distributor: Toy Investments, Inc.
  • Store: Toys R Us
  • Image:

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Toys which were deemed dangerous by the Trouble in Toyland report and which may cause gastroenterological injuries in children include:

  • Product name: Sonic Sound Sizzlers Noise Magnets
  • Label on toy: 8+
  • Type of hazard: Ingestion
  • Why toy is a problem:The toy contains two high powered magnets that are near small parts. If the toy was a small part, it would be banned for children <14.
  • Manufacturer/Distributor: JA-RU Inc
  • Store: Family Dollar
  • Image:

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Many magnet toys on the market today use powerful neodymium iron boron (NIB) magnets which have increased in popularity with toy manufacturers as they have become readily available from Chinese exporters. They are commonly used in magnetic sets and magnetic office toys and jewelry, especially earrings and bracelets. They are also appearing in dollar store toys.

If swallowed, one magnet may pass through the digestive system without incident. If two or more magnets are swallowed, however, they can attract each other in the body. If one magnet is in the stomach and another is in the small intestine, for example, they can cling together and quickly work their way through tissue, perforating the wall or creating a hole. Two or more magnets attracted to each other in the intestine can create a bowel obstruction or perforation. Using MRIs to diagnose the problem is very dangerous, since the magnetic fields used in imaging could tear the magnets through tissue if they are present.

Another dangerous product discussed in the Trouble in Toyland report is
Buckyballs or Buckycubes, made by Maxfield and Oberton. In my opinion, Buckyballs and magnet desk toys similar to Buckyballs sold by retailers are not merchantable and reasonably suited to the use intended and pose an unreasonable risk of injury to children.

Here is an image of one type of Buckyballs:

sidekick-edition-buckyballs-supraballs

The federal standard for high powered magnet toys for children bans them for children under 14 if they fit in the choke test cylinder. There is an exception for magnets included in certain “hobby, craft, and science kit-type items” intended for children 8 and up, provided the products comply with special magnet hazard disclosures.

There are a number of other dangerous toys discussed in the Trouble in Toyland report. Read it if I have not mentioned the toy that injured your child.

I’ve highlighted a few dangerous toys that can cause harm to children. Next I want to address what options a parent has if their child has been injured by one of these toys (or other toys that pose an unreasonable risk of harm).

Normally, a products liability claim is going to be the best option for parents.

In Georgia product liability is centered upon O.C.G.A. Section 51-1-11 which provides that the manufacturer of personal property sold as new is strictly liable to individuals who are injured by that property.

To establish a strict liability claim under this statute, a plaintiff must prove that (1) the defendant was the manufacturer of the product, (2) the product was defective when it left the control of the manufacturer, and (3) the product’s defective condition proximately caused the injury to the plaintiff.

While O.C.G.A. Section 51-1-11 is the basis for most products liability claims, there are other legal options open to a parent whose child is injured by a dangerous toy. A plaintiff can rely on negligence, strict liability, and warranty theories.

The bottom line? If your child has been harmed by a toy and you believe there may be a basis for holding the manufacturer liable, please don’t hesitate to contact me. It costs you nothing and may benefit you a great deal.

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.