Those ugly and ubiquitous Crocs shoes — and the cheaper knockoffs — have been involved in an international wave of serious injuries to the feet of young children on escalators.

At first I was skeptical when I began hearing last year of kids’ toes being mangled on escalators at the Atlanta airport. However, this article from Consumer Reports lays it out.  Safety organizations in the U.S. and Japan have issued warnings about  Crocs and other soft-sided clogs posing safety hazards to escalator riders. Typically, the shoe becomes entrapped when the rider is stepping on or off the escalator or standing too close to the side. 

The Consumer Product Safety Commission reports that 77 escalator entrapment incidents have been reported since January 2006, half of which resulted in injury. All but two of the incidents involved soft-sided flexible clogs and slides such as Crocs. The CPSC doesn’t reference the brand Crocs in its announcement but acknowledges that Crocs fall into the category of soft shoes they are warning about. In Japan, where 3.9 million pairs of Crocs were sold last year, the Trade Ministry asked the Colorado-based maker of Crocs to change the design of its shoes after receiving 65 complaints of Crocs and Crocs knockoffs becoming stuck in escalators between June and November of 2007.

Crocs is naturally pointing to every other possible cause of these injuries, including loose shoe laces (no laces on Crocs), escalator design, "improper use," etc. The CPSC joins in the obfuscation by issuing a long list of every possible rule for use of escalators known to humankind. I have noticed signs at the Atlanta airport that take the same broad, vague approach.

Most of the incidents appear to involve little children on escalators, often in airports where they are tagging along with parents in a hectic, somewhat unfamiliar environment where parents are likely to be in a rush, managing carry-on bags, and perhaps not totally focused on how the children are amusing themselves on escalators. Little feet in little, soft-sided shoes are more vulnerable to getting caught in the mechanism that bigger feet.

Interestingly, I haven’t seen any comparable stories of essentially bare feet in flip flops or sandals, or feet clad in sneakers or other lace up shoes, being injured on escalators.   I don’t know of any statistical analysis of the risk of escalator injuries in Crocs, and expect that any product liability suit against the manufacturer would be met with a barrage of pseudo-scientific studies sponsored by the company, and exhaustive Daubert motions to exclude any evidence for the injured children.

However, if it looks like a duck, walks like a duck and quacks like a duck, maybe it’s a duck. If I still had young children, I would decide for them what my college kids have apparently decided for themselves: don’t buy those "(expletive deleted) ugly shoes." At minimum, I wouldn’t let them wear them when going to places with escalators.  There are plenty of other shoe styles that can be slipped off and on easily at airport security that don’t present a known risk of injury.  If bigger kids or adults, with bigger feet and more discretion, want that style, that’s their choice.

This year, with foreclosures and unemployment rates soaring, more people will focus on discount prices when buying boys for their children and grandchildren. The harbinger of this season may have been when a Wal-Mart employee was trampled by the crowd entering a store at 5 AM on the day after Thanksgiving.  Others in the depths of economic pain may shop at Goodwill or consignment stores for used toys.

Whether toys are new or used, before giving a beloved child a low priced toy, one should check for product recalls. The U. S. Consumer Products Safety Commission maintains an online listing of all toy hazard recalls since 1975.  A couple of minutes checking this list could help prevent a lifetime of regrets.

When Ford acquired Volvo a few years ago, I thought it was quite a mismatch of corporate cultures. Volvo had a reputation for building the world’s safest cars.  Ford, on the other hand, sometimes seemed only slightly ahead of Yugo in that regard. 

I have owned Volvos for 20 years.  I bought the first one, a 240 DL wagon when our first child was an infant.  She now drives an S40 while I drive an S80 with about 120,000 miles on the odometer.  My wife and son drive other models, but not Fords. 

The safety reputation of Volvo is impeccable.  In the past 20 years, I have become aware of fatalities in Volvos only in a couple of types of situations — where a deer or a falling oak tree came through the windshield, or where a drunk wrapped himself around a utility pole at 100 mph.

Ford is another story altogether.  I won’t begin to catalog the horror stories.  Some I’m not at liberty to tell.

However, hope breathes eternal, and I hoped that Volvo’s influence might be a healthy one in the Ford corporate family.  But now it appears that the marriage didn’t work out, as Ford prepares to sell  its high-end European brands — Volvo, Land Rover, Aston Martin and Jaguar.  Ironically, Volvo ranks as one of Ford’s best-selling brands. It has generated profits of $800 million to $1 billion a year, provided Ford with expertise in safety development.  That’s just not enough to offset the losses from other Ford brands.

I wonder what had happened if Ford had subsumed itself into the Volvo identity, including the Volvo tradition of safety consciousness, and adopted Volvo safety technology for all its brands.  Just a thought.

Tires manufactured in China and sold in the U.S. under brand names Westlake, Compass, Telluride and YKS have been ordered recalled due to life threatening defects.  My bet is that no one will ever be able to hold anyone financially responsible, and certainly not in Georgia. The problem is compounded by the inability to enforce a U.S. court judgment in China.

The Chinese tire manufacturer, Hangzhou Zhongce Rubber Co., chose to leave out a gum strip which helps bind the belts of a tire to each other, preventing tread separation.  When tire treads separate at highway speeds, catastrophic crashes often result.  This was the cause of the massive Firestone / Bridgestone  tire recall several years ago.

The response from the Chinese tire manufacturer was to deny everything.

This recall involves tires imported and sold by a small New Jersey importing company that does not have the resources to complete the recall and replace the tires.  The chance of getting the Chinese company to take responsibility for the recall, or for the injuries and deaths caused by these tires, is just about nil. 

Of course, the Chinese plan to start exporting cheap cars to the U.S. too.  See a 40 mph crash test of a Chinese sedan.  The A-pillar collapses and folds up, forcing the driver’s door to pop largely out of its frame, while the lower portion of the car buckles under.  The results to the occupants would be catastrophic.  My German is more than a little rusty, but the frontal and side impact videos really require no translation.

Aside from any interest in protecting American manufacturing jobs, the Chinese lack of safety standards or financial responsibility for resulting damages is another reason to avoid buying Chinese products in any category at any price.  Unfortunately, our retailers such as Wal-Mart have too often abandoned American manufacturers and workers and sell hardly anything that was not manufactured in China and other low-wage countries.  It is just one more instance of corporations exporting American jobs and the safety of American consumers.  See the discussion of this topic at Free Republic.

The tire recall reminds us yet again of the shortcoming of "reformed" Georgia tort law that shields sellers from all liability for defective products, even when they import substandard products from third-world manufacturers that cannot be held accountable in U.S. courts.  I wonder if we might get around that through creative use of the Fair Business Practices Act, though it would be tough.

Caveat emptor.  How do you say that in Chinese?

The Latin phrase "caveat emptor" (buyer beware) is often referred to as an ancient principle of the law.  However,  "caveat emptor" entered the legal vocabulary as a caustic comment of people cheated by itinerant peddlers and horse traders beyond the effective reach of local courts and by dishonest merchants who had won the favor of kings and nobles who controlled the courts. Lawyers began to use the convenient phrase in arguments.  Eventually Blackstone lent it more dignity. Around 1800 it was endorsed in English case law, and American courts followed suit. The doctrine of caveat emptor, wrapped in the convenient cloak of a Latin phrase, arose contemporaneously with philosophies of moral relativism in time to serve the interests of developing mercantilism. See generally, W. H. Hamilton, "The Ancient Maxim Caveat Emptor," 40- Yale Law Journal 1188 (1931).  To borrow language of Justice Frankfurter  in describing "assumption of risk,"  the phrase "caveat emptor" is "an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lay repetition; a repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." 318 U.S. at 68-69.

While products liability insurance is to Chinese manufacturers exporting to the US, it is unclear whether most such manufacturers carry insurance or have any motivation to do so.  In Georgia, where product sellers have virtually no exposure to liability, there is no economic motivation for sellers to require their Chinese suppliers to carry such insurance.

The U. S. Supreme Court has decided to hear a case concerning the scope of federal regulations preempting higher standards under state health, safety and tort laws. Preemption is the principle that a federal law can supersede or supplant any inconsistent state law or regulation. When preemption occurs, state law on a given subject is invalidated and the federal law substituted in its place.

Some federal statutes clearly state that regulations issued pursuant to the statutes will preempt any contradictory state laws, while some clearly state that the federal standards define a national minimum standard that states may exceed.  Other statutes are silent about preemption, preemption comes about through federal agencies claiming preemption in their regulations, or by courts implying preemption.

Under the Bush administration, a wide variety of federal agencies have taken the position that their regulations preempt all state laws and tort claims where manufacturers and other corporations comply with minimal federal regulations.  Sometimes those regulations are ghost-written by industry lobbyists to meet the minimum level to which even the least safety conscious already comply.  By setting the standard that low, and preempting any legal claims that there should be greater attention to safety, the regulators remove the economic incentives for safety that have been provided by products liability litigation. 

The specific case the Supreme Court has agreed to hear involves medical devices.  However, the issues is much broader, involving everything from pharmaceuticals to railroad safety to auto safety. 

It is noteworthy that not all Republicans follow the Bush administration’s line on this issue. Fred Thompson, a former Tennessee Senator and prospective Presidential candidate, recently wrote an article critical of federal regulations preempting state laws, on the basis of the conservative constitutional principle of federalism. 

A rash of recent news stories about dangerously defective products from China points to the need to amend a tort reform law that was passed in Georgia twenty years ago. In 1987, long before so much manufacturing was outsourced to China, the Georgia General Assembly passed OCGA 51-1-11.1, which provides:

(a) As used in this Code section, the term "product seller" means a person who, in the course of a business conducted for the purpose leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer’s plan, intention, design, specifications, or formulation; or repairs; maintains; or otherwise is involved in placing a product in the stream of commerce. This definition does not include a manufacturer which, because of certain activities, may additionally be included within all or a portion of the definition of a product seller.

(b) For purposes of a product liability action based in whole or in part on the doctrine of strict liability in tort, a product seller is not a manufacturer as provided in Code Section 51-1-11 and is not liable as such.

(c) Nothing contained in this Code section shall be construed to grant a cause of action in strict liability in tort or any other legal theory or to affect the right of any person to seek and obtain indemnity or contribution.

The legislators back in 1987 were probably thinking about protecting "mom and pop" retailers from liability due to defects in products as to which they had no influence or control.  It is extremely unlikely that they had in mind a gargantuan retail chain with the power to dictate product specifications and outsource the bulk of American manufacturing to China.

Before passage of this statute, Georgia law recognized the doctrine of "ostensible manufacturer" whereby a company that puts its label on a product manufactured by another company was held responsible for the product as if it were the actual manufacturer.   Courts later determined that this statute abolished the "ostensible manufacturer" doctrine in Georgia.

The situation now is that a huge percentage of manufacturing has been outsourced to China. While it is theoretically possible to sue a Chinese manufacturer, as a practical matter it enormously difficult, expensive and unrewarding to seek to hold a Chinese manufacturer fully accountable. With no feasible opportunity to seek compensation from the "ostensible manufacturer" that puts its label on a product imported from China, or to sue a "product seller"  such as Wal-Mart that dictates specifications and imports vast quantities of cheap products from China, Georgians have no practical recourse for injury or death caused by defective Chinese products.

At minimum, OCGA 51-1-11.1 should be amended to provide an exception where the product seller puts its own label on a product manufactured by another company, or sells imports that were manufactured upon its order.  If there are unreasonable risks associated with products manufactured in China, all that risk should not fall upon the American consumer.  I haven’t worked out the wording of such an amendment, and of course the devil is in the details.

A leading industry in Northwest Georgia is the manufacture of tufted carpet. A vital element of the local economy of Dalton, Calhoun and surrounding communities, the carpet industry provides a good living for a substantial portion of the local population as well as thousands of hard-working immigrants. Unfortunately, however, we have seen that the companies that design and manufacture the equipment used in carpet production sometimes cut corners regarding worker safety. In one case against a major manufacturer of carpet equipment we found that a direct applicator was designed to be accessed on two sides but the emergency stop cord was installed only on the safer of the two sides, and even then was installed backwards so that it did not work. The worker whose arm was pulled between rollers was lucky to avoid worse injury or even death. We continue to hear of incidents in which even experienced carpet mill workers are mained or killed by defectively designed or manufactured carpet production equipment.

A coalition of lawyers who have sued tobacco companies says it is close to filing a class-action lawsuit against soft-drink makers for selling sugared sodas in schools.
Leading the litigation effort is Richard A. Daynard, an associate dean at Northeastern University School of Law in Boston, who is also president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project, both of which have provided legal support to attorneys suing tobacco companies. Joining Daynard is Stephen A. Sheller, a Philadelphia lawyer who came up with the legal theory that tobacco firms deceived consumers into thinking their low-tar and -nicotine cigarettes were safer to smoke than regular cigarettes. Also involved in the prospective lawsuit is the Center for Science in the Public Interest, a consumer advocacy group that has aggressively pressed for more explicit food labels and less fat and sodium in all kinds of food.
Note that these are not the meat-and-potatoes trial lawyers who typically represent individuals and families who have suffered a grievous injury. They are public health crusaders who try to find a client to fit a theory, and use the courts to change public policy and large-scale corporate behavior. Referring to them as “trial lawyers” or “personal injury lawyers” would be misleading, but I am sure the tort reform zealots will do just that.
I have serious reservations about this kind of food and beverage class action litigation. And not just because I went to law school at a univeristy (Emory) that was built on Coca Cola money. Some of my concerns are:
* Unless they can prove the sinister use of toxic or physically addictive additives in food and beverage products, they appear to be complaining about things that are obvious common sense characteristics. We have all known since childhood that too much sugary soda and too much fatty food is likely to make you fat and rot your teeth. We choose to indulge anyway. Just today I decided to skip the low-fat, low-calorie salad at lunch, and indulge in a double hamburger with fries and a full-sugar, non-diet soft drink. I knew exactly what I was doing, but hey, I ran a marathon in October and a half-marathon in November, and I’ll run it off tomorrow.
* A massive class action that strikes the average citizen as silly and overreaching will only feed the climate of “tort deform” by which corporate America seeks to strip rights and redress from average citizens. It will enter the litany of “frivolous lawsuits” along with the real but misrepresented (McDonalds hot coffee case) and the merely mythical (guy holding up lawn mower to use as hedge trimmer). It will hurt the system upon which people with real and serious injuries depend.
The change of behavior these crusaders seek — to stop sales of sugary soft drinks to children at school — is probably good. I am sure they mean well. But I think their use of tort law for this purpose will hurt more than it helps.