Product Liability Question

[azrider]

I recently made something but had a question about it. When a person has open heart or lung surgery, they use a pillow to brace their sternum together as it heals, since there is no way to put a cast on it. When they are first leaving the hospital, they use this pillow under the seatbelt strap in the car. After six or so weeks, the Dr. allows them to drive again, but they can not use the pillow while driving. In order to keep the seat belt strap away from the incision, I made a strap about 16 inches long, with two snaps. One half can be hooked under the bottom belt, one can be hooked over the top one. It keeps the top belt on the shoulder, but pulls it down so it doesn't go across the incision. It works really well to make driving less painful.

I wanted to make a couple of dozen of these, and donate them to the group that makes the pillows for the cardiac patients at the hospital. My only worry is that since they change the way a seat belt fits, could I get sued if someone gets in an accident, and the seat belt doesn't work as well as it would otherwise?

Below is a picture of the strap. If you know anyone recovering from a bypass or any surgery where their chest was opened, they might appreciate one of these. Feel free to use the design.

Edited May 26, 2012 by azrider

[mlapaglia]

Im not a lawyer but it looks like it uses the same principal that the ones that keep the belt of a pregnant woman's stomach uses. They are sold all over. Id say you are care. Print on them "Use at your own risk".

But the only person that will be able to give you a good answer is a lawyer.

[Bluesman]

I would stay away from ANYTHING some Mc Donald's, poured coffee in my lap, attorney could get ahold up. Just me.

Edited May 27, 2012 by Bluesman

[TwinOaks]

You can get sued for anything, by anybody, for just about any reason. Just don't label it as "seat belt re-positioning strap" and you I think you should be 'okay'.....after all, you could have designed it to be used to hold back curtains. Not your fault if it's "mis-used".

[Chavez]

Hi!

Product liability insurance is something I'm interested in too.

Does anyone on this forum have it?

Personally, I'm against any unnecessary insurance (any insurance is gambling against the odds imho), but there are cases where you're better off with it.

For general items: what if somebody's kid chews up their wallet that they bought from me and gets sick? Silly, perhaps, but looking at the modern trend for lawsuits, I can see somebody trying to sue me for not specifying that the wallet should be kept out of reach of hungry children. Even if they don't stand a chance in court, I would still need some cash to pay for a lawyer to defend myself.

For things like dog collars its even worse: you won't sell many if you tell everyone to use them at their own risk! But if it snaps, I'm sure it will come back to me =(

[Ferg]

Don't mean to make your day bad, we carry $2,000,000 liability. Have never in 35 years needed it but I can only imagine what would happen if some idiot decided to sue and we weren't covered.

Your cost may be decided depending on your yearly sales, ours is.

ferg

Hi!

Product liability insurance is something I'm interested in too.

Does anyone on this forum have it?

Personally, I'm against any unnecessary insurance (any insurance is gambling against the odds imho), but there are cases where you're better off with it.

For general items: what if somebody's kid chews up their wallet that they bought from me and gets sick? Silly, perhaps, but looking at the modern trend for lawsuits, I can see somebody trying to sue me for not specifying that the wallet should be kept out of reach of hungry children. Even if they don't stand a chance in court, I would still need some cash to pay for a lawyer to defend myself.

For things like dog collars its even worse: you won't sell many if you tell everyone to use them at their own risk! But if it snaps, I'm sure it will come back to me =(

[Chavez]

Thanks Ferg!

I'll try to get a few quotes then=)

[BIGGUNDOCTOR]

Ceck with Zander insurance, they may do liabiliy. 1,000,000 general liability is around $300 a year.

Automotive related safety item = yes , you can be sued. It may even require a certification to be sold in the USA. I cleaned out a warehouse that had thousands of child restraints that were deemed illegal to sell in the USA due to their design.

[mlapaglia]

if you are worried about getting sued, incorporate. It will limit what you can lose. Im not sure if an LLC (Limited Liability Corporation) would work as I have not looked into them. Its not too expensive to incorporate.

Edited May 29, 2012 by mlapaglia

[Chavez]

Thanks guys.

I'm considering incorporating anyway, but it seems to add a few extra bucks to expenses, so I haven't decided on it yet =)

[chancey77]

Honestly if you are just trying to be charitable...

Screw the Insurance, Screw the Label, and Just drop off a Few to the hospital you want to donate them to with a note saying what they are...your name is not on it and you have done your good deed...

The problem with the world is people are so afraid of getting sued that the whole point of living is turned into fear...

I say dang the torpedoes..if you have tested it at all, and it works, then give them away to the charity!

If the doctors think it is a good idea to use, then they will give them out.

For me, The leather looks a little thin, and a single snap is pretty week.

10oz leather with some buckles might be better...or more snaps that are at least positioned the proper width of the seat belts..

If they actually get into a wreck while driving..it won't matter anyhow. These days they will be knocked out by the airbag that punches they in the face anyway and wake up dazed in a cloud of powder. But...for what you are describing this use is only intentioned for...Just make 10 of them for the doctors to hand out, go back and check on them in a month or so and see how it went, if they seemed to get a good response or not and if they want more???

Then take it to the next level...DON*T EVER LET POLITICS GET IN THE WAY OF A GOOD DEED!!!!!!!

It is not an actual safety belt...just something to keep from ripping out the stitches...and looks perfectly safe to me. If someone got hit hard enough, I guess the snaps would pop or it would slide down and the seat belt would do its job normally!

But if your name isn't on it, then...WHO KNOWS WHERE THESE CAME FROM?!?!?!?!

But they could be your test dummies:)

After all, charity is for charity...NOT THE GLORY!

So just a box and a note:)

[BondoBobCustomSaddles]

Well, from the law suit side of things everyone pretty much have covered it, however; believe it or not, that is just the tip of the iceberg! I am a retired advanced seat system engineer from Lear Corporation, and Ford Motor Company. I have spent thousands of hours in the test lab, evaluating and designing seating systems and their related safety features and equipment. Seat Belts are no longer seat belts, but; part of a much more complicated and intricate safety restraint system, and while it seems simple, these systems are designed and federally regulated to IIHS and FHSS mandated standards. These "Seating Systems" next to the engines and trans' are the most complicated and intricate systems in the automobile. The Auto companies, all of them, not just the big 3 spend billions, annually to protect the consumer against himself and the misuse of the equipment that is federally mandated in the vehicles. Even something as simple as that strap circumvents the design and negates the test results that they worked to achieve and validate the seating system. ( they stopped being just seats a long time ago, thanks to Ralph Nader) As a Seating System Engineer, and someone who has seen the lengths that are gone through routinely to prevent modification of even the simplest component, by the auto companies and their VERY EXPENSIVE TEAMS OF LAWYERS, my advice is to stay as clear as you can of that item. Sorry, to bust your bubble, but; the days of doing a good turn just because you want to help are long gone.

Bob

[BIGGUNDOCTOR]

OOOOh , don't think for a moment that if something did happen, and the person who handed it out was staring down a lawsuit that you wouldn't be tossed under the bus. They would find you easy enough.

I agree with Chancey77 in principal, but in reality, Chavez could lose everything in a lawsuit. I believe it was Shakespeare that said "First thing we do is kill all the lawyers."

I have a Libitarian side of me that believes that we should be able to make our own decisions, and accept the consequences of our actions. I for one would like to see a large scope of all types of government, from federal to city, regulations done away with. The problem is the victim mentality ( it was someone else's fault) that many have, and the lawyers that are all too willing to take their case.

[chancey77]

I am a retired advanced seat system engineer from Lear Corporation, and Ford Motor Company.

Bob

I'll just have to remember that Bob, when I remember my Aunt who was killed in a brand new Ford Pick up in 2002 because she was broad sided by someone running a red light and the seat belt mech failed and the door swung open and when the truck rolled she was under it and was crushed by her new truck...

Don't get me started on who should be sued...but no it was a "freak accident"...Please don't get me started on how FORD AND ALL AMERICAN CAR MAKERS MAKE NOTHING BUT GARBAGE! SINCE 1970! Lets forget about making a car that lasts a working class guy 20 years. Lets make sure he spends 100,000 bucks on a 18,000 dollar car in PARTS in 20 years!

Ok spaz out done...

I know your retired...and I am just a mere 35...but still a spade is a spade. And I still love my Ford! CIRCA 1955! NO SEAT BELTS!

But I'll be thinkin about ya!

ANYWAY!

Back to what this is really about...

If someone is told by the doctors that they shouldn't drive...it is probably a good idea to listen since they will be on drugs!

But if something as simple as a strap, that is basically exactly like the ones pregnant woman wear while driving it should in theory be exactly the same scenario...a temporary solution for a couple weeks until the stitches are removed.

Pregnant women wear them for months at a time.

You could just make something like this that is padded like a pillow ....

They also recommend a 3 point seat belt...but hey those have all been tested and DOT approved.....

Everybody has some idea about it...I am just stating what I see from an obvious stand point from the picture you showed...looks like it works, and would pop open in a real accident, so WHY NOT!

Heck the Bracelets I used to make a very long time ago with 1 snap, all you had to do was look at it hard and it popped off... but that was before I found real snaps! NOT FROM TANDY! hahahaha

Edited May 31, 2012 by chancey77

[azrider]

Thanks for all the feedback. To clarify a few points: These would be used by someone who was released by the Dr. to drive after having open heart or lung surgery. I had a double bypass in about 2 months ago, and chose to use one of these when the Dr. said I could drive again. Testing mostly completed. I personally accept the risk that it will prevent the seat belt from working as intended if an accident occurs. Honestly, someone who had a surgery where their chest was cut open will be pretty hosed if they get in an accident no matter what kind of seat belt they are wearing. An air bag deployment would likely break my sternum right now, and for the next few months. Seat belt or no. The only purpose of the strap was to move the belt away from the incision, to reduce the amount of pain caused by the seatbelt. Those moments where you hit the brakes because of a dog on the road can be very painful if the seat belt locks over the incision. I can use this no matter what car I am in, and it adjusts quickly for either a passenger or driver. Its not about making it softer over the sternum, its about trying to get the whole seat belt away from the area. I am 58 days out from surgery at this point, and am still in pain when I sneeze or have any kind of pressure over the chest.

What I am getting from the responses is pretty much what I was afraid of. No good deed can go unpunished, and if someone was using one of these I made and was in an accident, they or their family could come after me for damages. As much as I would like to think they would be grateful for not having as much pain while driving, since I have an actual business for my leather, I can't take the chance. I think this will be something I will offer to people I know personally, but won't donate a bunch of them to the hospital. I wonder how the companies that make the ones for pregnant women avoid the liability.

[BIGGUNDOCTOR]

Try contacting them, and ask that question. It may be a simple answer, or it may be very involved. You won't know till you ask.

[JohnBarton]

Well, from the law suit side of things everyone pretty much have covered it, however; believe it or not, that is just the tip of the iceberg! I am a retired advanced seat system engineer from Lear Corporation, and Ford Motor Company. I have spent thousands of hours in the test lab, evaluating and designing seating systems and their related safety features and equipment. Seat Belts are no longer seat belts, but; part of a much more complicated and intricate safety restraint system, and while it seems simple, these systems are designed and federally regulated to IIHS and FHSS mandated standards. These "Seating Systems" next to the engines and trans' are the most complicated and intricate systems in the automobile. The Auto companies, all of them, not just the big 3 spend billions, annually to protect the consumer against himself and the misuse of the equipment that is federally mandated in the vehicles. Even something as simple as that strap circumvents the design and negates the test results that they worked to achieve and validate the seating system. ( they stopped being just seats a long time ago, thanks to Ralph Nader) As a Seating System Engineer, and someone who has seen the lengths that are gone through routinely to prevent modification of even the simplest component, by the auto companies and their VERY EXPENSIVE TEAMS OF LAWYERS, my advice is to stay as clear as you can of that item. Sorry, to bust your bubble, but; the days of doing a good turn just because you want to help are long gone.

Bob

Excellent post. The wealth of experience on this site is incredible.

I guess my thought after reading this is how would I feel if I provided something to someone that alters how the seatbelt works and they got seriously hurt due to the performance being altered.

I personally think that when it comes to things like seatbelts let the people using them do whatever they are going to do with them. The idea presented here can be achieved by any number of things including a common belt. I'd stay away from it. the intention is good but the risk is great to cause harm. When it comes to safety gear I'd have to be damn sure of what I was doing before trying to make or interfere with it.

[hummeri7582]

Can you get sued?

Yes. In many cases, people will sue even though they have no idea if they can prove the case. Here are some interesting statistics:

Of all the lawsuits filed in the United States, about 50% of them are dismissed before even proceeding to the trial phase.

Of the ones not dismissed, about 70% are settled out of court.

Of the 30% that actually go to court, the plaintiff loses about 70% of the time. In medical malpractice cases, the plaintiff loses more like 90% of the time.

Of the 30% who go to court and win, 95% of them only win an average of $30,000-$50,000.

The famous McDonalds Hot coffee lawsuit? HUGE outlier. Seriously. In the legal world, getting a case like that all the way though the system and collecting that much money is the equivalent of winning the powerball jackpot. It's pretty much a once-in-a-lifetime type deal, if you're lucky. Oh, and the award in that case was found to be excessive by the appeals court, so they didn't actually get the $14 Million.

So the long-and-short of it is yes you can be sued. The question is, will they win, and how much will the legal bills be?

In most states in the US, there are several types of product liability. Strict liability means that all a plaintiff has to prove is that something happened -- they don't have to prove negligence or mens rea (guilty mind) to win. An example of this would be buying a house and having it fall down on your head the first time there is a 15 mile per hour wind. In this case, the fact that the structure failed is a res ispa loquitur indication of liability since it is a reasonable expectation that a house not fall down in a fifteen mile per hour wind. Res ipsa loquitur means in Latin "the thing speaks for itself." Here, the fact that the house fell down in such a way speaks for itself, and no need to prove intent or specific actions caused the incident. Houses just should not fall down like that. But most cases are not this clear-cut. The ones that are, every lawyer in town will be chomping at the bit to get in on.

Breach of Warranty: this is pretty self explanatory. If I buy a new car and find out the engine is missing when I pick it up, this is a breach of warranty. In Common Law, there is a reasonable expectation that an item purchased retail will be fit for the intended purpose of the item, and most states have codified this with the Uniform Commercial Code. A car without an engine is unfit for the intended purpose, so this is a breach of warranty. To clear up one misconception about breach of warranty, this is a separate issue from the 3 year, 36,000 mile warranty the car maker gives me. For instance, If I bought the car, towed it home and never drove it for four years and then went out to drive it for the first time after four years only to discover the engine was never installed, the manufacturer cannot deny liability just because my three year warranty expired -- in this case, the vehicle was never fit for use to begin with, and that warranty is irrelevant.

Negligence: what most people think of. Making a product that is clearly defective or dangerous. To prove this, generally you must show several things:

1) That the defendant had a duty of care. In other words, That you have a duty to the buyer to not provide dangerous products. An example of this would be a skydiving company. The skydiving company has a duty of care to take every possible precaution to make sure a customer's parachute will open. However, skydiving is inherently dangerous, so there is only so far that duty of care can go in that case. If the parachute is properly packed, and the customer is properly trained to use it, but passes out on the way down and does not open it, that's not the skydiving company's problem: they met their duty of care by ensuring the parachute would work as intended.

2) If the person has a duty of care, that they breached it. So, we've established that the parachute company has a duty of care to take every precaution to make sure the parachute opened. Now we have to prove that they did not meet that duty of care.

3) Such breach was the cause in fact of the plaintiff's injury -- that is, it was an actual cause. "But for the parachute not opening, you would not have plummeted into the ground at 100 mph."

4) That the breech proximately caused the injury. The parachute did not open. This was the cause of the accident. It was the cause of the injury.

5) The plaintiff suffered actual, quantifiable injury.

So I think you need to evaluate your idea in those terms. Do you have a duty of care? I'd guess yes, you do, especially since you know this item may interfere with the proper function of seat belts, and since case law extends duty of care to all foreseeable injury. So, since you knew this item might interfere with the seat belt, then yes, selling it might be a breach of your duty of care. Was this breach an actual cause of the injury? This is where it gets complicated. Can you honestly say "but for this device interfering with the seat belt, the person would not have been injured?" You said yourself that anyone who has had this surgery and is not yet fully healed would be in bad trouble in any car crash. Did the breach proximately cause the injury? Again, it's hard to say. Did your device cause the injury, or was it the fact they were driving in that condition cause the injury? Would they have been injured even if they did not have this surgery? And as to the last question: did the plaintiff suffer actual quantifiable injury? Maybe. Or maybe they should not have been driving in that condition? Hard to say.

My advice to you would be to contact competent counsel in your state. Also, incorporate. It costs about $300 to incorporate in Delaware, and you don't have to live in DE to incorporate there. There are registered agents who will provide you a local address in DE for your corporation for a small fee every year (incorporating cheaply is one of Delaware's cottage industries -- a great number of US corporations are incorporated in Delaware, even ones that don't have a single office, factory or employee in that state.

Yes, you can get sued. Whether they will win is the question.