July 2008
From the editors of Wolters Kluwer Law & Business, this update describes important developments from CCH products liability and safety publications.
If you have any comments or suggestions concerning the information provided or the format used, we'd like to hear from you. Please send your comments to pamela.maloney@wolterskluwer.
Products Liability
Verdict Against Lead Pigment Makers Based on Public Nuisance Reversed
A verdict against a group of
former lead pigment manufacturers and their national trade association
which was based on a theory that their products created public nuisance
that caused injuries to consumers was overturned by the Rhode Island Supreme
Court because the manufacturers did not interfere with a public right,
nor were they in control of the lead pigment at the time it caused harm.
The Rhode Island Attorney General had asserted that the companies’
role in the production and distribution of lead paint amounted to a public
nuisance, which has caused to lead poisoning of children in Rhode Island.
After the longest civil jury trial in the state’s history, the jury
returned a verdict imposing liability on three of the manufacturers for
causing or substantially contributing to a public nuisance. (Rhode
Island v. Lead Indus. Ass’n, Inc., R.I. S.Ct., CCH
Products Liability Reports, No. 1163, July 23, 2008, ¶18,031
(ip
access users))
Safety Standard Could Form Basis for
Trade Association’s Liability
There were sufficient facts
in dispute surrounding whether a trade association’s role in developing
a window blind safety standard constituted a voluntary undertaking giving
rise to a duty to warn consumers of the risk of strangulation by children
the U.S. District Court for the District of Alaska determined. Parents
of a child who was strangled by the inner cord of a window blind were
unable to identify the maker of the blinds but alleged that the trade
association was liable because it had developed the warning used on the
product. The court found there was sufficient evidence to raise an issue
for the jury as to whether the association’s actions constituted
a voluntary undertaking that could give rise to liability. (Rountree
v. Ching Feng Blinds Industry Co., Ltd. D. Alaska, CCH Products
Liability Reports, No. 1162, July 3, 2008, ¶18,019
(ip
access users))
Window Manufacturer Not Protected by
Mississippi Statutes of Repose
A manufacturer of mass-produced
windows that were accompanied by instructions on how to install them in
homes with a stucco exterior was not protected by the Mississippi statute
of repose for improvements to real property, the Mississippi Supreme Court
held. Homeowners had claimed that water infiltration caused by the allegedly
defective windows resulted in damages to their home. Although the damage
was discovered after the expiration of the state’s six-year statute
of repose for improvements to real property, the court found that the
manufacturer did not qualify for the statute’s protection because
the statute was not designed to protect manufacturers; it was meant to
protect those furnishing or performing design, planning, supervision of
construction or the actual construction of improvements to real property.
(Winkel v. Windsor & Doors, Miss. S.Ct., CCH Products
Liability Reports, No. 1162, July 2, 2008,
¶18,021 (ip
access users))
Product Safety
NHTSA Amends Vehicle Importation Fees
Regulations prescribing fees
for various functions performed by the agency with respect to the importation
of motor vehicles that are not originally manufactured to conform to all
applicable federal motor vehicle safety and bumper standards have been
amended by NHTSA. To avoid the costs of the DOT conformance bond required
of vehicle importers, some importers have attempted to post cash deposits.
While this relieves the importers of the bonding costs, it may cause NHTSA
to expend considerable resources. The amendments adopted in the final
rule establish a fee of $459.00 which will permit the government to recover
all the direct and indirect costs incurred by the agency in processing
cash deposits or obligations of the United States that are furnished in
lieu of a DOT conformance bond. The effective date of this final rule
is October 1, 2008. (CCH Consumer Product Safety Guide,
No. 919, July 28, 2008, ¶41,983
(ip
access users))
Power Window Safety Compliance Extended
Two Years
In response to two petitions
for reconsideration of a final rule amending the federal motor vehicle
safety standard for power-operated window, partition, and roof panel systems,
NHTSA granted the requests for an additional two years to comply with
the pull-to-close operability requirements of the April 2006 rule. The
April 2006 final rule established a new safety requirement for vehicle
power window switches, specifically that such switches have a “pull-to-close”
design, and set a compliance date of October 1, 2008, which was the same
as the compliance date for a rule published in September 2004 that amended
the standard to include a performance test to prevent inadvertent actuation
of power window switches, particularly by children. The requirements of
the April 2006 final rule pertaining to “pull-to-close” operation
of power window switches, as amended by the current rule, become mandatory
for all vehicles subject to the standard manufactured on or after October
1, 2010. All other requirements, including the performance test for inadvertent
actuation, continue to become mandatory for all vehicles subject to the
standard that are manufactured on or after October 1, 2008. Voluntary
early compliance is permitted. Petitions for reconsideration of this rule
must be received by August 21, 2008. (CCH Consumer Product Safety
Guide, No. 918, July 14, 2008, ¶41,982
(ip
access users))
Rescission of Windshield Zone Intrusion
Standard Proposed
After a periodic review of its
regulations, the National Highway Traffic Safety Administration (NHTSA)
proposes to rescind Federal Motor Vehicle Safety Standard (FMVSS) No.
219, “Windshield zone intrusion.” From time to time NHTSA
reviews regulations to determine whether a continuing safety need exists
for the standards under review. NHTSA has tentatively concluded that the
windshield zone intrusion standard was no longer necessary because other
FMVSSs are now in place to meet the safety need that the standard had
addressed. Comments should be submitted early enough to ensure that they
are received no later than September 5, 2008. The agency has tentatively
concluded that the safety need that FMVSS No. 219 addresses is being met
by certain other FMVSSs. FMVSS No. 219 was necessary in 1975, when NHTSA
had no safety standard in which it specified crash testing to assess any
hazards to which occupants were exposed as a result of such intrusion.
Manufacturers responded to the standard by ameliorating windshield zone
intrusions, and as a result, there has not been a compliance issue with
FMVSS No. 219 since shortly after its inception. (CCH Consumer
Product Safety Guide, No. 918, July 14, 2008, ¶40,714
(ip
access users))
Proposal to Amend Rear Object Detection
System Rules Withdrawn
In response to a number of developments,
NHTSA withdrew a proposal to amend Federal Motor Vehicle Safety Standard
No. 111, “Rearview Mirrors” that would require straight trucks
with a gross vehicle weight rating (GVWR) of between 4,536 kilograms (10,000
pounds) and 11,793 kilograms (26,000 pounds) to be equipped with a system
capable of providing drivers with a view of objects directly behind the
vehicle. The agency believes it more appropriate to address backing safety
of straight trucks as part of the comprehensive effort to address backing
safety generally, and that solutions should be formulated after the completion
and review of ongoing research and data gathering on backing safety. More
refined data generated since the 2005 NPRM showed that the sub-population
of mid-sized trucks accounted for only four of the estimated 183 fatalities
per year due to back-over accidents. In addition, the recently signed
Cameron Gulbranson Kids Transportation Safety Act of 2007 (K.T. Safety
Act of 2007) (CCH Consumer Product Safety Guide ¶10,861
(ip
access users)) required NHTSA to revise the federal standard for rearward
visibility, specifically to reduce backing crashes involving children
and disabled people. (CCH Consumer Product Safety Guide,
No. 919, July 28, 2008)