Federal Government Blocks Almost 650,000 Dangerous Products at Ports in Fourth Quarter 2011

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256px-US-ConsumerProductSafetyCommission-Seal.svgThe U.S. Consumer Product Safety Commission (CPSC) recently announced that its port investigators identified and blocked around 650,000 units of products deemed dangerous or in violation of U.S. safety standards. Investigators reportedly screened over 2,900 shipments arriving at U.S. ports during the period from October 1 to December 31, 2011. They blocked about 240 different products identified as noncompliant with safety standards, preventing them from reaching consumers and possibly causing injury.

The CPSC is an independent federal government agency created by the Consumer Product Safety Act in 1972. Its mission is to guard the public “against unreasonable risks of injuries associated with consumer products.” It has authority to issue regulations regarding the sale of a wide range of consumer products. The only products not subject to its jurisdiction are ones put under the authority of a different agency by a specific statute. For example, the National Highway Traffic Safety Administration has authority to regulate automobiles, and the Food and Drug Administration has authority over pharmaceutical and most food products. The CPSC can ban products it deems dangerous, and it can compel recalls of dangerous products already in the market.

The CPSC has several programs that enable it to collect data about products in the U.S. market. The National Electronic Injury Surveillance System collects data from a set of hospitals on injuries related to consumer products, then analyzes the data to create estimates the agency can use nationally. SaferProducts.gov, a website operated by the CPSC, allows consumers to report unsafe products online.

The list of products blocked by the CPSC at the end of 2011 is dominated by children’s products, which comprised eighty-two percent of the total number of units stopped. Of the children’s products blocked at ports of entry, the CPC found that they were dangerous or violative in six main ways:

– 47% contained lead or lead-based paint;
– 18% contained small parts not appropriate for children;
– 15% contained phthalates, a plastic product found to have serious health effects;
– 8% had tracking labels that were incorrect or non-compliant;
– 4% included art materials prohibited in children’s products; and
– 2% contained incorrectly-branded toys.

The remaining six percent included products with sharp points, chemical hazards, heavily-regulated baby products, and toys requiring batteries that did not meet safety standards. Most of the products blocked by the CPSC originated in China, with some coming from Mexico and Japan.

Connecticut Man Attempts to Rescue Injured Bobcat, Avoids Being Bitten

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256px-Bobcat_(Lynx_rufus)_CaliforniaA Connecticut man travelling in Vermont recently brought an injured bobcat to the Guilford Welcome Center near the Vermont-New Hampshire state line. A state game warden had previously received a report of a bobcat hit by a vehicle on Interstate 91 on the morning of Sunday, March 25, 2012, but she was unable to locate the animal. She then received a call regarding this man who picked up the bobcat and transported it to the welcome center in his vehicle. The warden found the bobcat laying in the back seat of the man’s car, clearly suffering multiple broken bones.

The warden informed the man of the risks he had faced driving with the bobcat in his car. Had the animal woken up, it does not have the behavioral constraints expected of domesticated animals. This particular bobcat reportedly weighed about twenty-five pounds and could have done very serious damage by biting or scratching. In fact, the bobcat reportedly grew more alert and active while the warden waited for a veterinarian to arrive. She stated that the animal, clearly suffering a great deal of pain, began biting the car seats. In order to safely sedate the bobcat, she had to first use a Tazer to incapacitate it. Once it was sedated, the veterinarian quickly determined that the bobcat was too badly injured to be rehabilitated. The decision was made to euthanize it the same day.

Bobcats are wild animals with a geographic range over much of the continental United States and Canada. They are about twice the size of a typical housecat, weighing roughly eleven to thirty pounds. Bobcats are usually nocturnal and solitary, avoiding humans wherever possible. At the same time, they can be quite formidable, with powerful legs that enable them to pounce up to ten feet. Human contact, particularly in close quarters, is best avoided.

The man’s heart was in the right place in trying to save the bobcat, but he also put himself at considerable risk for injury. Had the bobcat bitten the man, it is highly unlikely that he would have had any sort of claim for damages against anyone. A person injured by an animal, or someone injured because of reasonable fear of attack by an animal, might be able to make a claim against the animal’s owner, or the person directly responsible for controlling the animal. Wild animals in the wild have no owners and are not subject to anyone’s control.

Connecticut Supreme Court Overrules Its Own Caselaw Regarding Insurance Claims for Personal Injuries

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256px-Dune_SplashThe Connecticut Supreme Court took an unusual step in a recent decision, overruling its own prior decision. The current case, Arrowood Indemnity Company v. Pendleton King, began with a dispute between the parent of an injured child and another parent. The case developed into a dispute between the defendant and the defendant’s insurance company over whether the insurer received adequate pre-litigation notice of a claim. The court, in holding that the burden rests with the insurance company to prove prejudice caused by late notice, has altered an important aspect of the insurance claims process, one that could possibly have far-reaching impact on Connecticut personal injury attorneys and their clients.

King’s teenage son was driving his parents’ all-terrain vehicle (ATV) in 2002, using a nine-foot rope to tow another boy on a skateboard. The boy being towed, Conor McEntee, let go of the rope and fell, suffering serious head trauma that caused him to be hospitalized with a temporary coma.

The King and McEntee families reportedly continued to socialize after the accident, and the McEntees did not tell the Kings they intended to bring a claim for Conor’s injuries. Over a year after the accident, the Kings received a letter from an attorney representing the McEntees. The attorney notified them of the McEntees’ intent to claim damages for the accident. The Kings, through their insurance broker, presented the claim to their insurance carrier. They had homeowner’s and umbrella liability policies through the insurer. The insurance company, later substituted by Arrowood Indemnity Company, filed a declaratory judgment action, claiming that it had been prejudiced by the McEntees’ late notice of their claim, and that therefore it was not obligated under its contract with the Kings to defend or indemnify the Kings.

The Connecticut Supreme Court had ruled in a 1988 case, Aetna Casualty & Surety Co. v. Murphy, that the burden of disproving prejudice in a case of late or delayed notice of a claim fell on the insured. The court reasoned that, since the insured was the party seeking to enforce the terms of a contract despite not abiding by his own contractual obligations, the insured should have to show how enforcing the contract against the insurer would not unfairly prejudice the insurer.

The court in Arrowood explicitly overruled Murphy, holding that the insurer must prove by a preponderance of evidence that a delay in notice has caused prejudice. The court noted that courts in many other jurisdictions have ruled that the insurer has the burden of proving prejudice. It also noted the difficulty of “proving a negative,” which is what the insured would have to do under Murphy. This could “prevent the court from meaningfully weighing the parties’ real interests.”

Graduated Driver Licensing Laws Contribute to Connecticut’s Relatively Low Number of Head Trauma-Related Deaths Among Teens

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256px-Medical_X-Ray_imaging_GKO04_nevitThe total number of traffic fatalities involving teen drivers has decreased nationwide by over forty-six percent since 2005, according to a recent study conducted by State Farm Insurance and the Children’s Hospital of Philadelphia. Over 55,000 teenagers, defined as those aged 15 to 19, suffered serious injuries in car accidents in 2009 and 2010. Of those, thirty percent of them suffered acute head trauma, such as skull fractures, concussions, and traumatic brain injury (TBI). This is the most common type of injury, followed by injuries to the lower extremities (27% of the total) and chest (14%). The report’s lead author noted that prevention is the best strategy for dealing with head trauma, since many TBI’s cause lasting or permanent damage. He also remarked that making teens wear helmets when driving is not a practical solution.

Connecticut has a relatively low rate of traffic fatalities with teen drivers. During the period from 2009 to 2010, the fatality rate was 7.5 per 100,000 population, the thirteenth-lowest in the country. This is also a decrease of 19.6% since 2005. The study’s authors credit graduated driver licensing (GDL) laws for contributing to low rates of teen-driver traffic fatalities. They further recommend that teens go through at least fifty hours of practice supervised by an adult driver before receiving an unrestricted license.

GDL laws limit the times of day and conditions when some licensed drivers may operate a vehicle. They may also limit the number of passengers certain drivers may transport and restrict drivers to certain geographic areas or a certain distance from a driver’s home. These laws can apply to young and newly-licensed drivers, but they may also apply to people with health or injury issues that would affect their ability to operate a vehicle safely in some circumstances. This has the benefit of providing opportunities for young drivers to practice in a somewhat-controlled environment, thus reducing the risk of head trauma and other injuries.

Connecticut’s GDL laws may include restrictions as to time of day and type of roadways, as well as use of corrective eyewear and certain vehicle features. A driver might be restricted to driving only during daylight hours. A driver may be required to drive only vehicles with an automatic transmission, or to drive only when wearing prescribed corrective lenses. For people restricted by medical conditions, the person’s physician may recommend specific restrictions to the state’s Department of Motor Vehicles.

Connecticut Jury Awards $1 Million to Injured Worker for Retaliation Claim

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1337308_83303939_04032012.jpgA Connecticut railroad worker received a judgment of more than $1 million in damages in a jury trial against his employer, Metro-North Railroad. The plaintiff, Andy Barati, alleged that Metro-North retaliated against him by unlawfully firing him after he reported concerns with workplace safety. These concerns arose after Barati was injured. Using a federal law designed to protect whistleblowers, Barati sued the railroad. This case has important implications for injured workers who want to do their part to prevent future injuries.

Barati worked for Metro-North as a trackman at the Grand Central Terminal Loop Track. He was injured on the job on April 22, 2008 when a rail tie fell on his left foot after a jack allegedly failed, breaking his big toe. According to his complaint, he immediately reported the injury to his supervisor.

About two weeks later, on May 7, Barati says he received a “Notice of Disciplinary Trial” from his employer. He says he became subject to a formal disciplinary trial on May 30, and that Metro-North terminated his employment on June 17. He was only able to return to work on August 5, 2008, after he submitted to further discipline that remained on his permanent employment record and reduced his income and other benefits.

In October 2008, Barati filed a complaint under the Federal Rail Safety Act (FRSA) with the U.S. Department of Labor. FRSA prohibits railroad carriers from retaliating against an employee for making a good faith report of any injuries on the job or other matters relating to workplace safety. The law’s protections are administered by the Occupational Health and Safety Administration (OSHA), which issued an order supporting Barati in June 2009. This order allowed Barati’s lawsuit to go forward.

Barati filed his lawsuit in November 2010, claiming that Metro-North failed to use reasonable care to prevent injuries on the worksite where Barati’s accident occurred by failing to give safety briefings, to supervise employees sufficiently, to provide enough lighting, or to train employees to use rail jacks. These unsafe conditions led directly to his injuries, he alleged, and he asserted that Metro-North was liable for his injuries under the Federal Employers Liability Act (FELA). FELA allows compensation for railroad workers who suffer work-related injuries. He claimed damages in the form of medical costs, lost wages, diminished earning capacity, pain and suffering, and mental anguish. Barati further alleged that Metro-North violated FRSA by dismissing him after he reported his injury and safety concerns.

A jury awarded Barati $50,000 in compensatory damages for his pain and suffering and lost wages. It also awarded him $1 million in punitive damages. Barati’s attorney told the Wall Street Journal that this was the first verdict to rely on FRSA. Metro-North has indicated that it will likely appeal the verdict.

Connecticut Man Sentenced in Boating Accident Case That Injured Two People

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1285111_60052942_04032012.jpgA Greenwich, Connecticut man recently received a sentence of probation over a 2010 boating accident off the coast near Madaket in Nantucket. The August 2010 accident, described as a “hit-and-run boating collision,” injured two people, sending both to the hospital.

Nearly a year later, in July 2011, prosecutors in Nantucket County charged the operator of one of the boats, 21 year-old James Sternlicht, with multiple offenses. These included unsafe operation of a motorboat and failure to report a motorboat accident. Because Sternlicht was under the age of 21 at the time of the accident, prosecutors added a charge for alcohol possession. They also charged him with operating a motorboat without a proper identification number. Massachusetts law, like the laws of Connecticut and other states, requires registration of boats, and requires that boats to have proper documentation.

In March 2012, a Nantucket District Court judge sentenced Sternlicht to one year of pretrial probation for the unsafe operation of a motorboat charge. The court fined Sternlicht $500 for failing to report the accident, and $50 for operating the boat without identification. Prosecutors dismissed the charge of alcohol possession. Sternlicht must also complete a boating safety class through the United States Coast Guard before he may operate a boat or any other water vessel again.

Boating accidents are a serious problem throughout the country. The U.S. Coast Guard identified 4,789 boating accidents in 2008. These accidents caused 709 deaths and 3,331 injuries, and caused about $54 million in property damage. Ninety percent of the fatalities did not have a life jacket on, and ninety percent occurred with boat operators who had not received safety training. The Coast Guard found that alcohol was the main factor in seventeen percent of boating accident deaths that year.

Connecticut requires a Safe Boating Certificate (SBC) in order to operate a recreational vessel such as a boat. For jet skis, described by state law as “personal watercraft,” the state requires a Certificate of Personal Watercraft Operation (CPWO). To obtain either certificate, an applicant must complete a basic boating course and an examination. Children under the age of 16 may operate a boat, but not a personal watercraft, if an adult age 18 or older with a SBC supervises them. Children under the age of 16 may operate a personal watercraft if an adult with a CWPO accompanies them.