Wrongful Death
Product Liability: Retailer Fined $3.9 Million for Illegal Sale of Children’s Clothing with Drawstrings
Last month, a discount retailer agreed to pay one of the largest fines ever issued by the Consumer Product Safety Commission (CPSC). The civil penalty settles allegations over illegal sales of children’s clothing with drawstrings.
The CPSC announced that Ross Stores, based in Pleasanton, California, agreed to pay a $3.9 million penalty and implement compliance programs. From January 2009 to February 2012, the CPSC alleges that Ross Stores knowingly failed to report that it sold or held for sale about 23,000 children’s upper outerwear garments with drawstrings at the neck or waist.
Under federal law, manufacturers, distributors, and retailers must report to the CPSC within 24 hours of learning about a defective product which may create a substantial product hazard. They must also report those which create an unreasonable risk of serious injury or death or fail to comply with CPSC regulations.
In July 2011, the CPSC issued a final rule and determined that children’s upper outerwear garments in certain sizes present substantial product hazards. The ruling should have taken the majority of children’s clothing with neck, hood and waist strings out of stores.
Ross Stores has now been fined twice over drawstring clothing for children. In 2009, it paid a $500,000 fine for failing to report it sold garments between 2006 and 2008.
The CPSC has received over two dozen reports of children suffering injury and wrongful death when clothing drawstrings get caught on playground equipment or vehicle doors. Since passing its 2011 rule, it has issued 8 recalls. In 2011, the CPSC also fined Macy’s $750,000 for selling children’s upper outerwear with drawstrings.
Related:
Ross Stores Fined in Sales of Defective Clothing, New York Times
Housing Code Violations and Over-Crowding in Boston Student Housing
The fire on April 26, 2013 at 87 Linden Street in Allston, the second serious fire in less than two years on the same block, is a tragic reminder of what can happen with overcrowded, substandard student housing.
The Fire Marshall will now investigate the cause of the Allston fire. In addition, The Boston Inspectional Services Division should examine whether the unit was overcrowded in violation of the Boston Zoning Ordinance, and whether housing codes and accessibility codes were violated. Enforcement of city ordinances is, unfortunately, inconsistent, and usually after the fact. Knowing this, landlords and realty companies frequently violate these ordinances in the name of profits. The victims are often unsuspecting college students. As a result, students, who pay high rents, are subjected to increased risks from their overcrowded housing.
The law in Massachusetts governs how homes must be safely maintained in order to prevent personal injury to occupants of the property. In Boston, zoning ordinances require building owners to declare whether their properties are single-family or multi-family units. In either case, under Boston’s zoning ordinances, under the definition of “family,” no unit may be occupied by more than four unrelated students unless the building meets much stricter building requirements.
It is also generally illegal for a landlord to create bedrooms in basements, and it may be against code to create a bedroom in an attic. No matter how it is configured, every house or apartment must have working smoke detectors throughout the unit.
Once a unit exceeds the four unrelated-occupant threshold, it technically becomes a rooming house, which makes it subject to very strict fire-prevention regulations under M.G.L. c. 148, Sec. 26I and other regulations. For example, a rooming house must have walls and ceilings made from fire-rated materials to slow flames in the event of a fire. Smoke detectors must be in every bedroom,
and must be interconnected. Even more important, every boarding house must have a working sprinkler system. Boarding houses must also meet accessibility guideline and provide multiple means of egress for upper floors, which may include fire escapes.
Real estate brokers and leasing agents share responsibility for student overcrowding and exposure to risk from substandard housing. A quick look at any leasing agent’s website will reveal scores of units available for student occupancy which are intended to house more than four unrelated individuals. Leasing agents collect a single month’s rent, sometimes more, for their services. Since they also take the responsibility to collect signatures on leases, they know exactly how many students will be in the unit. Leasing agents simply cannot claim ignorance of the laws regarding overcrowding.
Who May Be Liable
It is our firm’s opinion that violations of the boarding house rules are evidence of negligence and may create liability for the responsible landlord.
We also believe that knowing and willful violations of the boarding house rules by real estate companies or leasing agents may subject them to liability as well. Violations of these standards may also be violations of the Massachusetts Consumer Protection Act, which may subject landlords and their leasing agents to multiple damages and attorneys’ fees.
Other Cases
Injuries and death from substandard housing may also lead to criminal charges against landlords. For example, in January 2012, two absentee landlords were convicted of manslaughter after a fire in an illegal apartment in Quincy led to the deaths of three tenants. The landlords were accused of wantonly violating building and fire codes.
The question of the enforceability of rooming house regulations is also pending at the Massachusetts Supreme Judicial Court. In that case, civil claims were brought against a Worcester landlord for violation of the Worcester zoning bylaw. In that city, no more than four unrelated persons can occupy a home. The city brought the violation because there were more than four students in the unit. The decision in that case is expected to be handed down in the next few weeks.
Update: The City of Boston later cited the owner of the two-family structure, Anna Belokurova, for running an illegal rooming house and not obtaining the permits needed to create bedrooms in the basement, according to The Boston Globe. Read more.
Related Articles:
Woman killed, firefighters and occupants injured in raging Allston fire, Boston Herald.
One dead, 15 injured in Allston house fire, The Boston Globe.
Jury finds landlords guilty of involuntary manslaughter in Quincy apartment fire, The Patriot Ledger.
About Breakstone, White & Gluck
Breakstone, White & Gluck of Boston has over 85 years combined experience represented injured clients in Massachusetts. If you or a loved one has been injured, learn your rights. For a free legal consultation, contact us at 800-379-1244 or 617-723-7676 or use our contact form.
Toyota Settles One of First Wrongful Death Cases
A month after being assessed a record $17.4 million fine, Toyota Motor Corp. has settled one of the first wrongful death lawsuits involving sudden and unintended acceleration by its vehicles.
The Japanese automaker confirmed last week it had reached an agreement with the family of Paul Van Alfen and his son’s fiancee, Charlene Jones Lloyd, for an undisclosed amount in the November 2010 accident in which they died, USA Today reported. The automaker said it has also settled another case filed under California’s lemon law by a retired Los Angeles police officer.
Van Alfen and Lloyd were killed in 2010 when the Toyota Camry they were traveling in on Interstate 80 in Utah suddenly accelerated. Van Alfen, the driver, attempted to stop the vehicle, but ran through a stop sign and into a wall. His other passengers, his wife and his son, were injured. The Utah Highway Patrol investigated and determined the car accident was the result of a sticking gas pedal.
Other Injury Lawsuits. The settlement comes as a group of lawsuits consolidated in U.S. District Court in Santa Ana, California moves forward. Prior to the consolidation, Toyota had also reached a $10 million settlement in a case involving an auto accident which killed a California police officer and his family.
The officer and his family were killed near San Diego in 2009 when their Lexus accelerated above 120 mph, struck an SUV, rolled off an embankment and burst into flames. The car accident was blamed on a improperly sized floor mat which was trapped in the accelerator.
More Than $1 Billion Settlement. In December 2012, Toyota agreed to a settlement worth more than $1 billion to resolve hundreds of lawsuits claiming economic losses by car owners affected by its recalls. In recent years, the car manufacturer has recalled more than 14 million vehicles due to acceleration problems and brake defects.
$17.4 Million Fine. The National Highway Traffic Safety Administration issued Toyota a $17.4 million fine for safety defects in December 2012, the largest ever imposed. In 2010, the company paid a total of $48.8 in a series of three fines.
Related:
Toyota settles first wrongful death lawsuit, USA Today.
Toyota tackles acceleration lawsuits; questions remain, USA Today.
Toyota reaches $1 billion settlement in acceleration cases, USA Today.
Read More
Workplace Accidents Killed 58 Massachusetts Workers in 2011
Fifty eight workers lost their lives on the job last year in Massachusetts. The average fine in closed investigations into those deaths was less than $7,000.
The Massachusetts Coalition for Occupational Safety and Health (MassCOSH) released the figure in its annual report at Workers’ Memorial Day on April 28. In “Dying for Work in Massachusetts,” the group reported firefighters and construction workers again account for the majority of workplace deaths in Massachusetts. The group called for reforms such as strengthening OSHA regulations to prevent construction accidents and passing new state laws to protect temporary workers.
“It is deplorable that so many workers still die or are severely injured in workplace accidents,” said Boston personal injury lawyer David White of Breakstone, White & Gluck. “Employers must be held accountable when they fail to follow safety requirements and cause injuries or deaths.”
Breakstone, White & Gluck is a proud sponsor of MassCOSH, an organization with a great reputation for protecting workers and improving workplace safety.
In 2011 in Massachusetts, the average fine in the death of a worker was $6,490. MassCOSH said this low cost encourages employers to disregard OSHA regulations.
The group noted there is no consistent trend in the number of worker deaths. But in 2011, the number of workers lives’ lost rose 11, up from 47 in 2010.
Thirteen firefighters died in 2011, two as the result of injuries sustained while responding to fires. Another firefighter was crushed while performing routine vehicle maintenance. Ten others died due to work-related cancer and heart disease.
Construction accidents accounted for eight wrongful deaths. Deaths were also reported in the human services and commercial fishing industries.
MassCOSH reports workers are dying in four ways: motor vehicle accidents and incidents; construction falls; workplace violence and drowning. Falls from ladders, roofs and trees accounted for 20 percent of all workplace deaths. Construction accidents were involved in 14 percent of workplace deaths, including three men who were killed in electrocutions and explosions.
MassCOSH Reforms
The advocacy organization for workers’ rights is calling on state and federal lawmakers to make a number of changes. These include:
Proposed Changes at the Federal Level:
- Strengthen OSHA regulations, with one measure including criminal prosecution.
- Overhaul OSHA’s system for regulating toxic chemicals.
- Better protect immigrant workers by increasing the number of bilingual investigators.
- Improve whistleblower protections.
Proposed Changes at the State Level:
- Full implementation of Executive Order 511, so all state agencies have committees which ensure national health and safety standards are being met.
- Make improvements to Massachusetts workers’ compensation laws so coverage is provided to all injured workers.
- Pass the “Temporary Worker Right to Know Law,” which would increase state oversight and ensure that temporary workers are provided written notice of job assignments, supervisors, wages and other key details.
Elevator Accident in New York City Leads to Firings, Suspensions
A new report on a New York City elevator accident highlights the importance of safety on elevators, escalators and other equipment that transports the public.
While many elevators and escalators are used daily by large numbers of people, they pose a risk for injury when they are not properly maintained. The responsibility falls on manufacturers to produce safe products and building owners, management companies and city and state inspection officials to ensure machinery is kept up to code.
Elevator and escalator injuries and deaths are more common than the public may know. Each year, elevator accidents result in about 10,200 injuries and 27 deaths in the U.S. Escalator accidents result in about 17,000 injuries and 30 deaths.
One tragic case recently occurred in Massachusetts. In March 2011, a 4-year-old boy was killed after an escalator accident in the Sears at the Auburn Mall, near Worcester. The child was standing on the store’s second floor when he grabbed the moving down rail of the escalator and was pulled through a gap between the Plexiglas divider and the escalator. He fell 18 feet onto a display case.
Investigators later learned that the gap between the Plexiglas and the elevator was 1-1/4 inch greater than code. After an investigation, two state escalator inspectors were fired, six were suspended and 26 others were reprimanded.
In December 2011, two women lost their lives in separate elevator accidents. On December 9 in California, a 48-year-old woman was killed on an elevator accident at Cal State Long Beach. She was killed when the elevator got stuck between the second and third floors and someone tried to help her escape. A 2000-pound car crashed down on her.
Just five days later in New York City, a 41-year-old advertising executive was killed in an elevator accident in a Midtown Manhattan office tower. The woman was killed after she stepped into an elevator which suddenly lurched upward with the doors still open. She was pinned to an elevator shaft between the first and second floor and pronounced dead at the scene. Two other people who were trapped in the elevator were rescued and treated for trauma.
The city released results of the investigation into the woman’s death this week, finding that a maintenance crew had been repairing the elevator and utilized a special jump wire to bypass the elevator’s safety system nine minutes before the woman’s death. They then accidentally left it in place.
The investigation also found two other violations. First, the elevator repair crew never posted a warning that work was being performed. Second, the crew never called the city’s Buildings Department before putting the elevator back in service.
The city has suspended the license of the company from performing maintenance, Transel, which services 2,500 elevators in New York City. The company has fired five mechanics.
Related:
- Transel Elevator Fires 5 After Report on Elevator Death, The Associated Press.
- Escalator fall leads to firings, suspensions, Worcester Telegram.
Defective Products: The 10 Most Dangerous Toys of 2011
As the holidays approach, the lawyers at Breakstone, White & Gluck, PC urge you to shop carefully to avoid dangerous toys.
Each year, companies recall thousands of toys that put children at risk for injuries such as strangulation, lacerations, falls and death. According to the Consumer Product Safety Commission, the 34 toy recalls in fiscal 2011 were a marked decrease from 172 in 2008, but toy-related deaths rose slightly last year, with 17 children suffering wrongful deaths from defective toys.
In 2010, about 181,500 children were treated in emergency rooms for toy-related injuries. Non-motorized scooters continue to cause the most injuries, while toys with small parts and unsafe cords are also involved in many recalls.
Each year, a non-profit Boston organization, World Against Toys Causing Harm Inc., (WATCH) releases a list warning parents about the hazards of certain toys. The toys present hazards for burn injuries, strangulation injuries, and other bodily injury. This year’s “WATCH’s Most Dangerous Toys of 2011,” includes:
1) The Incredible Shrinky Dinks Maker
Potential hazard: Possible electric shock and burn injuries.
2) Sword Fighting Jack Sparrow
Potential Hazard: Possible eye and other bodily injuries.
3) ‘Gigan’ Godzilla Figure
Potential hazard: Possible puncture wounds.
4) Twist ‘n Sort
Potential hazard: Small parts cause a choking hazard.
5) Power Rangers Samurai Mega Blade
Potential hazard: Blade can cause injuries.
6) Fold and Go Trampoline
Potential hazard: Can cause injuries to people using it, including to the head and neck.
7) Pulling Animal Duck
Potential hazard: Potential for strangulation injuries.
8) School Bus
Potential hazard: Choking hazard.
9) Z-Curve Bow
Potential hazard: Danger to eyes.
10) Stepper ‘Low Rise” Stilts
Potential hazard: Head and other injuries from impact.
Change Your Smoke Alarm Batteries for Daylight Saving Time
On Sunday, Nov. 6, we turn clocks back an hour as Daylight Saving Time ends. The change from Daylight Saving Time is an important reminder to protect our family and homes by checking and changing the batteries in our smoke alarms and carbon monoxide detectors.
Fire and carbon monoxide poisoning are great concerns as the cold weather arrives and residents make their home heating decisions. Each year, more than 150 people in the United States die from accidental non-fire related carbon monoxide (CO) poisoning. This poisoning is associated with consumer products, such as furnaces, stoves and water heaters.
Even more people die each year in fires. In 2010, 3,120 people were killed while another 17,720 suffered fire-related injuries, according to the National Fire Protection Association. Four out of five civilian fire deaths occurred in the home. These statistics make your work to prepare your home for the winter especially important.
Smoke Alarms: Massachusetts requires a smoke alarm be installed on every habitable level of a residence as well as the basement floor.
There are two types of smoke alarms, photoelectric and ionization. Effective April 5, 2010, only photoelectric smoke detectors are to be installed within 20 feet of kitchens and bathrooms with showers. These alarms are less sensitive and the goal is to reduce nuisance alarms that cause people to disable devices. Both photoelectric and ionization alarms are required in all other areas.
Carbon Monoxide Detectors: Since March 31, 2006, residences have been required to have working carbon monoxide alarms on every habitable level of the home or dwelling unit. Carbon monoxide is a colorless and odorless gas that results from incomplete burning of fuels. The first symptoms of poisoning are similar to the flu and include headache, fatigue and dizziness.
The requirements for meeting the smoke alarm and carbon monoxide detector laws can be met with separate units or with smoke alarms that have carbon monoxide detectors.
Read More
Food Recalls Put Focus on Safe Preparation and Inspection
Recent food recalls involving cantaloupe, ground beef and ground turkey have put a renewed emphasis on food safety.
The cantaloupe recall ranks as the worst in a decade, causing 13 deaths and sickening more than 70 people. In 1998, Listeria contamination in hot dogs and deli meats killed 21 people, according to the Centers for Disease Control and Prevention.
On September 14, Jensen Farms of Holly, Colorado voluntarily recalled their shipments of Rocky Ford whole cantaloupe because of the potential for Listeria monocytogenes contamination. The food recall impacted shipments to 17 states, including in Colorado, Texas, Pennsylvania, New York and New Jersey. Massachusetts did not receive shipments of the contaminated cantaloupe.
The cantaloupe recall has subsequently been expanded, with Carol’s Cuts LLC, a Kansas food processor, recalling 594 pounds of fresh-cut cantaloupe. Eight wrongful deaths and 55 cases of foodborne illness have been linked to the contaminated cantaloupe. Listeria can cause serious and sometimes fatal food poisoning. Complications range from nausea and high fever among the general public to miscarriage and stillbirths for pregnant women.
In other recall notices, on September 28 Tyson Fresh Meats of Kansas recalled 131 pounds of ground beef products that may be contaminated with E. coli, a bacterium that can cause a wide range of symptoms, including dehydration, kidney failure and death. The contaminated ground beef products were shipped to 14 states.
The recall was issued after an Ohio man became ill from food poisoning and authorities tested leftover ground beef collected from his home. The beef was contaminated with the virulent strain of E. coli known as O157:H7.
On September 11, Cargill Meat Solutions Corporation of Springdale, Arkansas recalled 185,000 pounds of ground turkey products for Salmonella contamination on September 11. No injuries have been reported in that food recall.
It is important to carefully inspect your food during preparation. The U.S. Department of Agriculture’s Food Safety and Inspection Service offers tips for safe food handling and inspection in its guide called, Check Your Steps: Food Safe Families.
Read More
Unsecured Truck Load Accidents Are Growing Problem in Massachusetts, Nationwide
Unsecured truck loads are a growing problem endangering drivers across the country. Massachusetts has seen two of these fatal car accidents in the past two months.
In 2004, the AAA Foundation for Traffic Safety reported 25,000 motor vehicle accidents are caused each year by unsecured materials on highways.
The problem is most prevalent in California, which had 32 million registered vehicles in 2007 – more than twice the number of any other state, according to the New York Times. The California state transportation department reported that over a two-year period between 2005 and 2007, 155 people were killed as the result of debris from unsecured truck loads.
In some of these fatal trucking accidents, authorities file criminal charges against drivers and other employees. When these motor vehicle accidents result from negligence, drivers and companies may also face wrongful death lawsuits in civil court.
Some states have strengthened the penalty for accidents involving tractor-trailers carrying unsecured loads such as construction equipment, building supplies, wood and furniture. Several years ago, Washington state passed Maria’s Law, named for Maria Federici, a young woman in her 20s who was blinded and disfigured when a piece of furniture flew off a trailer and smashed her windshield.
Maria’s Law made hauling an unsecured load causing injury a gross misdemeanor, carrying maximum penalty of one year in jail and a $5,000 fine.
In Massachusetts, a 27-year-old Lynn man died Sept. 19 when a 400-pound tire being hauled by a truck broke loose on Interstate 93 in Somerville. The truck was owned by Ryder Truck in Braintree and leased to Sullivan Tire. The tires spilled across the median and smashed the windshield of the Lynn man’s car, throwing his car toward a retaining wall.
The 2005 Freightliner M2 flatbed truck was carrying tires containing a tire fill. This material made them heavier than standard tires filled with air.
On Aug. 12, a backhoe fell off a National Grid truck traveling on Interstate 495 in Southborough. The backhoe struck a van, killing an elderly passenger and causing serious personal injuries to others in the vehicle.
Click here to read a 2007 New York Times article about unsecured truck loads.
Contact Breakstone, White & Gluck today
The Massachusetts motor vehicle accident lawyers at Breakstone, White & Gluck are experienced in handling complex traffic accidents involving unsecured truck loads on the highways. Our attorneys represent clients throughout Greater Boston, from Boston and Cambridge to Framingham to Worcester. If you have been injured, contact us today for a free legal consultation. We can be reached at 800-379-1244 or use our contact form.
Child Passenger Safety Week Highlights Need to Protect Children
To parents, there is nothing more important than their children’s safety. In the car, safety starts with child passenger safety seats.
This week, the National Highway Traffic Safety Administration is observing Child Passenger Safety Week. This weekend is National Seat Check Saturday, an opportunity for parents to have their child’s safety seat inspected free of charge.
Motor vehicle accidents are the leading cause of death among children in the United States, according to the Centers for Disease Control and Prevention (CDC). Child passenger safety seats have been shown to reduce these deaths. For infants, child safety seats result in a 71 percent reduction in motor vehicle accident deaths.
All 50 states have child passenger protection laws. Violations are a primary offense in Massachusetts and 47 other states, meaning police can stop drivers solely for non-compliance. In Colorado and Nevada, child passenger safety violations are a secondary offense.
In Massachusetts, children must travel in a federally approved child passenger safety seat restraint until they are 8 years old or over 4’9″ tall.
Parents often use child safety seats incorrectly. In one study observing nearly 3,500 child safety seats, 72 percent were misused, according to the CDC. This increases the chance for motor vehicle accident injuries and deaths.
Massachusetts parents can ensure their child safety seat is properly fastened on Saturday, when police departments and not-for-profit organizations will provide free checks.
If you are a parent of a young child, click here to find an inspection station near you.
Click here for information on the Enhanced Child Passenger Safety Law in Massachusetts.
Read More