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"Knock-Off" Christmas Toy Injuries


The holiday season is a time meant to spent with family, making merry, exchanging gifts, and stuffing one’s face on the delicious holiday smorgasbord. Unfortunately, however, along with the exchanging of gifts comes the worry that these toys are safe for our children to use and enjoy as they play.

While Holiday Season 2018 has already passed, for the holidays this year, before you start shopping for the perfect children’s gifts, you have all of 2019 to get educated on some of the most infamous U.S. Consumer Product safety Commission (CPSC) toy recalls and the injuries these toys can cause.

Similarly, it is important to know which toys your child may have already received during this recent holiday season that may be potentially harmful.Ensuring your children’s toys are safe and not subject to a product recall is particularly important, especially considering a recent influx of counterfeit or “knock-off” toys into the State of New Jersey this past year.

In a recent interview with New Jersey Radio 101.5, Adele Fasano, Port Director for the Port of New York and New Jersey with U.S. Customs and Border Protection, said that in fiscal year 2018 there had been more than 2,900 seizures of counterfeit merchandise.

Fasano went on to explain that buying counterfeit merchandise is illegal and can also “include the loss of American jobs, support of criminal activity, and pose significant risks to consumer health and safety.” Fasano urges that when doing your holiday shopping to, “please make sure you purchase all your products from reputable sources.”

Most people would be quite surprised by just how rampant the hazard presented by defective, counterfeit, or knock-off toys really is, and just how many injuries these toys unfortunately cause each year. Take a look at the 2014 infographic chart below, compiled by the CPSC.

As this chart illustrates, the need to ensure that the holiday toys you purchase for your children – or other people’s children – are not counterfeit is important for all of the reasons that Ms. Fasano indicates, but it is also particularly important so as to safeguard these children from the risk of potential injury due to cheaply made knock-off toys which may be prone to causing things like lacerations, bruising, choking hazards, or even death.

Defective, counterfeit, or dangerous toys are the cause of thousands of injuries every year in the U.S. Product liability law provides the legal rules concerning who is responsible for defective or dangerous toys.

There is no federal product liability law, and so typically, product liability claims are based on state law, and brought under the theories of negligence, strict liability, or breach of warranty. In addition, a set of commercial statutes in each state, modeled on the Uniform Commercial Code, will contain warranty rules which may affect product liability.

Types of Product Defects

Under any of the aforesaid theories of liability, the plaintiff bears the burden of proof to establish that the product that caused injury was defective, and that the defect made the product unreasonably dangerous. There are three types of defects that might cause injury and give rise to manufacturer or supplier liability:

Design Defects - Present in a product from the beginning, even before it is manufactured, in that something in the design of the product is inherently unsafe.

Manufacturing Defects - Those that occur in the course of a product's manufacture or assembly.

Marketing Defects - Flaws in the way a product is marketed, such as improper labeling, insufficient instructions, or inadequate safety warnings.

Who's Responsible?

The doctrine known as "res ipsa loquitur" shifts the burden of proof in some product liability cases to the defendant(s). Translated, this Latin term means "the thing speaks for itself," and indicates that the defect at issue would not exist unless someone was negligent. If the doctrine is successfully invoked, the plaintiff is no longer required to prove how the defendant was negligent; rather, the defendant is required to prove that it was not negligent.

The second rule that helps plaintiffs in product liability cases is that of strict liability. If strict liability applies, the plaintiff does not need to prove that a manufacturer was negligent, but only that the product was defective. By eliminating the issue of manufacturer fault, the concept of no-fault, or "strict" liability allows plaintiffs to recover where they otherwise might not.

Has Your Child Been Injured by a Defective Toy?

Product liability actions are very complex, and establishing legal fault often requires the assistance and expertise of experienced professionals. Further, as explained, as products liability is largely predicated upon state law, and since each state has its own laws and specific statutes that will affect a product liability action, it is paramount that you contact a knowledgable products liability attorney in your state to evaluate your claim. If your child has suffered an injury caused by a potentially defective holiday toy, call Drinkwater & Goldstein, LLP today for a free over-the-phone consult. Our attorneys will be happy to answer your questions, help protect your interests, and help you and your child get the recovery you deserve. Call us today at (856) 753-5131.

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