Colorado Law Blog

Dozens of dangerous products that violate federal safety regulations are finding their way onto store shelves, and hundreds of other recalled items that have been banned for sale in the United States are being sold overseas. A recent investigation by Consumer Reports, based on a decade’s worth of government public safety records and shopping at more than one dozen stores, found that weak laws and lax federal enforcement are allowing some manufacturers and importers to flaunt federal and voluntary industry safety standards. As a result, according to Consumer Reports, consumers are buying potentially lethal products.

Some of these include: defective extension cords and electrical items that can overheat and burn; fake ground-fault circuit interrupter plugs that malfunction and fail to trip when there is an electrical overload; toys that can cut, choke or poison young children; counterfeit batteries that leak acid, overheat and spark; and disposable lighters that leak fuel and explode. Many of these good are counterfeits, using bogus labels designed to look like well-known brand-name items.

The Consumer Product Safety Commission (CPSC) maintains that it is as vigilant as it has ever been at policing store shelves for unsafe products. Yet a drastic decline in the CPSC’s budget and staffing, has resulted in inadequate and inconsistent enforcement of safety laws and policing store shelves.

When Consumer Reports visited dollar stores, drug stores and other discount stores, they found 48 toys, nearly one-third of the total purchased, violated mandatory federal or voluntary industry safety standards. In addition, the magazine found that inspections of stores and factories had dropped from 1,130 in 1999 to 500 in 2004.

A survey of the agency’s records also found that between 1994 and 2004, about 900 products that the agency deemed unsafe were exported to other countries. Allowing manufacturers to continue to export unsafe products removes any incentive they may have to mend their ways, and provides a back door to get rid of the product and still make a profit.

How can you keep your children safe from these products?

• Access the right websites: Do not rely on manufacturers’ websites to give unbiased information. Instead, try the government or a non-profit organization. Some suggested websites include the American Academy of Pediatrics and a non-profit group, Kids in Danger, that notifies parents of recalls.
• Get automatic notification: To be notified automatically when a product is recalled, call the CPSC at 1-800-638-CPSC and ask to be put on the agency’s mailing list, or sign up via its website
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• Beware hand-me-downs: Check any hand-me-down products or items from second-hand stores with the CPSC. One CPSC study found recalled products in 69 percent of second-hand stores nationwide. An example of the precautions you should take includes asking if a used child’s car seat has been in an accident. The seat may have internal cracks, and, as a result, may not protect your child in an accident. If you are considering giving your used products to a friend or to a thrift store, check with the CPSC to make sure the items haven’t been recalled.



• Resist impulse shopping: Research all products before buying. If you see an item you love, write down the name and model number of the product, then go home and start your research. The CPSC’s website is a good place to start.
• Beware bad track records: Some popular products such as baby walkers, bath seats, hard-handled infant carriers, infant swings and toddler beds have proven dangerous or deadly. You may want to consider not purchasing them.
• Ask questions: If a product’s instructions are confusing, call the manufacturer. If you have a second-hand product that does not include instructions, call the manufacturer and request a new set of instructions.

If your child is injured as a result of some dangerous product, call the CPSC to report the injury. Other children may have experienced a similar injury from the same model product, and your call could help prevent future injuries. Parents should also notify manufacturers about product hazards, and tell manufacturers that the CPSC will be notified about the product in question.

Posted by Linda Chalat at 01:21 PM | Permalink | Comments (0) | TrackBacks (0)

Man’s best friend doesn’t always live up to the title – an average 4.7 million people throughout the nation suffer a dog bite each year. The Insurance Information Institute reports that dog bites account for about 25% of all homeowners’ insurance liability claims.

If you are the victim of a dog bite and wish to pursue a claim against the dog owner, you will need to determine whether your state imposes "strict liability" on dog owners. If so, you may only need to prove that the dog injured you. If your state does not have a strict liability law, you may need to show that your neighbor knew or should have know of the dog's vicious propensities before it attacked you.

In Colorado, a dog owner is allowed one "free bite," until the dog bites the first time, the pet owner can argue lack of knowledge of the dander. The criminal statute regarding the ownership of dangerous dogs opens the door for civil claims of negligence per se for injuries caused by dogs. The statute defines a "dangerous dog" as one that (1) has previously inflicted injury or death on a person or domestic animal, (2) has demonstrated tendencies which would lead a reasonable person to believe that the dog may inflict injury or death to a person or domestic animal or (3) has engaged in or been trained for animal fighting [CRS § 18-9-204.5(2)(b)(I)-(III)].

Owners of dangerous dogs in Colorado are subject to criminal charges, ranging from Class 3 misdemeanors to Class 5 felonies, for injuries to, or death of, any person or domestic animal caused by the dangerous dog [CRS § 18-9-204.5(3)(b)-(e)]. Additionally, owners may be required to pay restitution in an amount equal to the fair market value of the domestic animal prior to the injury or death, plus any reasonable medical expenses incurred as a result of the dangerous dog's activities [CRS § 18-9-204.5(3)(e)].

This statute includes logic similar to the "one bite rule" in that subsequent violations of this statute result in stiffer charges. Until a dog has actually injured a person or domestic animal, the dog may not fall within the definition of a "dangerous dog," as its owner can argue he or she had no evidence that the dog would inflict injury or death.

In most cases, if you are asked into a house (or onto property) to perform work for someone, the person who owns the property has a legal responsibility to take reasonable efforts to protect you from injury. Thus, if the person has a pet, the person might be responsible for keeping the pet away from you, or at least warning you of the presence of the animal. Note that you may also have a workers' compensation claim against your employer.

If a dog owner violates a leash law, and her dog attacks someone, many courts will hold that this fact alone is enough to conclude the owner was negligent, and that the injured person is entitled to compensation from the dog owner.

A person may be imprisoned for keeping a vicious animal. There have been numerous instances where people have been criminally convicted for knowingly owning dangerous animals. In some instances, owners have been found guilty of murder when an animal's attack killed another person. Sentences have ranged from severe fines to significant jail time.

The most notorious case may be the couple whose dog killed a San Francisco woman as she was unlocking her apartment. Diane Whipple was mauled by a huge, unmuzzled dog that Knoller and her husband kept in their San Francisco apartment. Police said the criminal case against dog owners Robert Noel and Marjorie Knoller, who are both attorneys, was bolstered by at least three earlier attacks attributed to their two dogs, Hera and Bane. A state appeals court reinstated Marjorie Knoller's murder conviction for the death of Whipple, who was killed in the hallway of her Pacific Heights building Jan. 26, 2001. The court voted 3-0 to uphold the involuntary manslaughter conviction of Knoller's husband, Robert Noel, who had left the dogs in his wife's care the day of the attack but was not present when Whipple was killed.

If your pet is injured or killed by another animal, you may be entitled to receive "compensatory" damages. The amount may include the purchase price of a similar pet, registration of a purebred animal, licensing, shots, and training costs. Additionally, if you spent additional money on your pet -- other than for normal veterinary bills -- you should be compensated for such sums. In some cases, you may be able to receive compensation for mental anguish, loss of the companionship of the pet, and even punitive damages. To learn more about this developing area of law visit the NABR Animal Law Section.

Posted by Linda Chalat at 12:01 PM | Permalink | Comments (0) | TrackBacks (0)

Home is where the heart is, but it may also be where the danger resides. In 2001, there were 33,200 accidental deaths in the home. The four leading causes of such fatalities are, in order: poisoning, falls, suffocation from an ingested object, and fires and burns. While no age group is invulnerable, the two most at-risk groups are children under age 4 and the elderly.

With a little effort, simple precautions can prevent many accidents, an assertion proved by the fact that there were 116,000 fatalities in homes in 1969. Stricter fire codes, safer electrical and gas appliances, widespread use of safety glass, and the work of the National Safety Council in promulgating safety standards and procedures have yeilded dramatic results.

The Council provides the following outline for conducting regular “do-it-yourself” home safety analyses that can help mitigate household hazards:

Fire Safety

Most fire deaths in the home occur during normal sleeping hours at night. In a multi-story house, each floor should have at least one smoke detector, particularly in or around sleeping areas, basements and workshops. Test all smoke-detector batteries monthly and replace twice a year, regardless of test results. Every parent should also devise and regularly practice an evacuation plan for their children—and for themselves and their pets. Finally, every house should contain a multipurpose fire extinguisher graded for both grease and electrical fires. And make sure each member of the family knows how to use it!

Carbon Monoxide Protection

Carbon monoxide (CO) is a colorless, odorless gas that can leak into the home from improperly ventilated heaters, furnaces, stoves and other sources. Exposure can cause headaches, nausea and even death. Each household should have a CO detector near sleeping areas. Check and replace batteries as noted above. All potential sources of CO should be checked annually for proper functioning.

Preventing Falls

Falls are a common source of household injuries, particularly for the elderly. Steps and stairs are the leading culprit. Make certain that stair steps are of adequate and uniform size. Install handrails on both sides of all staircases whenever possible. Make certain that all rugs and carpets are tightly woven and well-affixed to the floor—taped down, if necessary. Likewise, non-slip mats and “grab bars” are mandatory for the bathtub and shower. Use a secure, one-step stool to reach those high places.

Preventing Electric Shocks

The rule here is simple: install Ground-Fault Circuit Interrupters (GFCI). This device shuts off the current in an electric circuit when it detects a potential electric shock. Definitely use GFCI’s in circuits running to damp areas, and those containing water.

Safety Glass

Safety glass breaks into relatively harmless pellets, not the dangerous shards and splinters of standard glass.

Survival Kits

To be ready for nature’s unpredictability, maintain a kit containing bottled water, nonperishable food, battery-powered flashlight and radio (check the batteries regularly), clothing, bedding, tools and a first aid-kit.

Certifications

Confirm that all electrical and gas appliances, and smoke and carbon monoxide detectors, are certified by a qualified testing organization. These organizations include, but are not limited to, Underwriters Laboratories, the American Gas Association, and the Canadian Standards Association. The seal should be easily visible.

The National Safety Council publishes a “Family Preparedness Checklist” available from its Web site. Another useful page on that site is Safety at Home.

Posted by Linda Chalat at 11:17 AM | Permalink | Comments (0) | TrackBacks (0)

Common wisdom is that the best thing for our children is to get them outside to play - but this may not be such good advice if they head for the background playset. A surprising report released by the U.S. Consumer Product Safety Commission (CPSC) revealed that over a ten year period, more children died from injuries sustained on backyard playground equipment than on public playgrounds. Data on playground related deaths reported to the agency from January 1990 through August 2000 was reviewed, and studied playground equipment related injuries treated in U.S. hospital emergency rooms.

The CPSC found that from 1990 to 2000 there were nearly 150 playground equipment related deaths to children under the age of 15. At least 90 of these deaths occurred in a home setting. Almost three fourths of these deaths in home settings were the result of hangings and strangulation from ropes, cords, homemade rope swings, and other similar items.

A major factor contributing to the danger of private playgrounds is that most home playgrounds do not have protective surfacing. Only 9 percent of home playgrounds have protective surfaces, while 80 percent of public playgrounds do have protective surfacing. According to the CPSC, dirt and grass “do not adequately protect children from serious head injury.”

The CPSC has worked in recent years to improve playground safety standards. In particular, standards have been revised to include:

* A requirement that ropes be secured at both ends to prevent rope from being looped back on itself and becoming a strangulation hazard.

* A warning in the equipment instructions against attaching ropes, jump ropes, clotheslines, leashes cables and chains – all of which could become strangulation hazards.

* A requirement for guardrails on platforms higher that 30 inches and for protective barriers on platforms higher than 48 inches. Such barriers and guardrails would help prevent falls.

* A requirement that a CPSC consumer information sheet for playground surfacing accompany the playground equipment instructions.

In addition to these equipment standards, the CPSC also has several recommendations to help keep our home playgrounds safe for our children:

* Install and maintain a shock absorbing surface such as shredded rubber, wood chips or mulch under playground equipment.

* Never attach ropes, lines and leashes to the equipment.

* Check for open “S” hooks, sharp equipment edges and protruding bolt ends. Smooth them or cover them.

* Check for spaces that could trap children, such as openings in guardrails or between ladder rungs. These spaces should measure less than 3.5 inches or more than 9 inches.

* Remove tripping hazards like tree stumps and rocks.

* Give the playground equipment regular maintenance check ups.

* Always supervise children on the equipment to make sure they’re safe.

For more information, visit the CPSC website. In addition, visit the website of KaBOOM! a non-profit organization based in Washington, DC, with the goal of helping promote and provide safe playgrounds for children.

Posted by Linda Chalat at 11:00 AM | Permalink | Comments (0) | TrackBacks (0)

You always knew it was a little slimy, and what it did to the sailorman was kind of creepy - but who thought it would kill you? Well, spinach won't be your only worry in the produce section if Congress follows through with plans to preempt state laws.

A virulent E.Coli strain infected America's spinach supply the last month, with the first case reported on August 23rd. After one subsequent death two weeks later, another death possibly due to this E.Coli strain, and over 100 reported cases nationwide, do you wonder just how safe their food supply is. The answer is: not very, according to a former FDA official.

The Centers for Disease Control and Prevention reported on September 19th that 50% of those reported sick from this bacterial strain were hospitalized – more than double what is seen in other E.coli outbreaks. Perhaps more frightening, three times the "normal" number of consumers in this sort of outbreak were inflicted with kidney failure (hemolytic-uremic syndrome), resulting in a painful death, a transplant, a lifetime of dialysis or a stringent medication regime. Despite these dangerous risks, the FDA only issued a voluntary recall of spinach, and this over 3 weeks after the beginning of the outbreak.

What may be more astounding to many Americans is that the Food and Drug Administration sees many of these cases each year, and issues little or no warning to the general public. There have been 20 episodes of a spinach or lettuce-borne food poisoning outbreak has occurred since 1995. The FDA is the same agency whose so-called drug oversight released such deadly drugs as Vioxx, Celebrex and Bextra onto the market, without reviewing the research submitted to them by the drugs' manufacturers themselves. Clearly the agency has lost sight of its mission.

Lack of Consumer Protection

The recent outbreak of the E. coli virus in the nation's spinach crop once again highlights the FDA's inability to protect American consumers. After one death and hundreds of illnesses, the FDA's only course of action was a voluntary recall; a decision that leaves millions of Americans at risk. And the risk to consumers may soon increase. This past March, the U.S. House of Representatives passed H.R.4167, the National Uniformity in Food Act: Senator Burr (R-NC) has since introduced a companion bill, S.3128, in the U.S. Senate. The bill preempts over 200 state food safety laws, including California's landmark Proposition 65, which guards against such substances as cancer-causing chemicals, lead and arsenic poisoning from being stocked on store shelves.

For Colorado, the following statutory protections would be preempted by the "National Uniformity in Food Act:"
Statutory provisions allowing the state to adopt tolerances for food additives and color additives that are more protective of human health than the applicable federal tolerances. (Colorado Food and Drug Act, § 25-5-413(2)). Statutory provision governing the safety of milk. (Colorado Revised Statutes, Title 25, Article 5.5, Part 1, §§25-5-101- 25-5-117). Statutory provision governing the safety of food in restaurants and other food service establishments. (Colorado Revised Statutes, Title 25, Article 4, Part 16, §§25-4-1601-25-4-1612). Law governing shellfish safety (Colorado Revised Statutes, Title 25, Article 4, Part 18, §§25-4-1803- 25-4-1805)

Posted by Linda Chalat at 02:41 PM | Permalink | Comments (0) | TrackBacks (0)

It’s not something you do with a rod and reel or an alternative music group. Phishing is an online scam used to commit identity theft. A fraudulent, but official-looking e-mail is sent to a user in an attempt to con that user into divulging personal and/or private information, which is then used for identity theft. The sender is “fishing” for a bite from a few of the millions of recipients of the fake e-mail.

You receive an e-mail that claims you need to provide personal information to update an account. In some cases, the e-mail claims that you account will be deactivated, or in the more bizarre cases, that bank regulators will suspend the federal deposit insurance on your bank account, unless you verify your key personal and financial data. Fraudulent e-mails from e-bay and PayPal are the most common examples.

Other incidents of phishing include e-mails purporting to come from a government agency, such as the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency or the Securities Investor Protection Corporation.

Users are then asked to click on a link that takes you to a web site that looks nearly identical to official government websites or a bank’s site. There people are asked to update information such as name, account and credit card numbers, mother’s maiden name, etc.

Some phishing scams have taken a new turn by offering cybersafety information to potential victims of the dangers of phishing scams. Common tricks include offering general tips about malware (trojans etc) and providing information to 'clients' about their updated security measures with the goal of getting people to enter their account details in a spoofed website. This is classic 'social engineering', designed to trick people by playing on the assumption many would make that a phishing scam would never warn potential victims of the dangers of phishing scams.

Colorado ranks third in the Nation for complainants per 100,000 people according to the 2005 IC3 Annual Internet Fraud Report. And Colorado ranks 15th in the Nation for the number of perpetrators per person.

Remember, all phishing emails are frauds - made to look like an email from a company with a large customer base. Thus a random spam email (online junk mail) will hit a percentage of people that are indeed customers of the business named. Frequently, the link actually takes people to a 'spoofed' website - one made to look like the legitimate one. Once the details are typed in and the fraud concluded, these schemes can actually then link the scam victim to the real company site.

There are a number of things that people can do, however, to ensure that they too do not become victims of phishing:

• Ignore e-mails that warn about fraudulent charges to your account or claim that your bank account or credit card account will be shut down unless you reconfirm certain information. Most important, do not reply or click on the link in the e-mail.
• If you're worried the e-mail might be legitimate, call the company using a telephone number listed on your account statement or bill.
• Use anti-virus software and/or firewalls on every computer you own/use. Remember that children are easy prey to the ‘just click here’ tactic.
• Pay attention to the Web address. Most legitimate sites will have a relatively short Internet address that usually ends with .com or .org. Phishing sites are more likely to have an excessively long line of characters in the Web address with the legitimate business name included somewhere in the string, or possibly not at all.
• Forward any suspicious e-mails to the Federal Trade Commission (FTC) at uce@ftc.gov. If you believe you've been scammed, file your complaint at www.ftc.gov, then visit the FTC's identity theft Web site (http://www.consumer.gov/idtheft/ for tips on minimizing the damage from identity theft. You should also contact your local police or sheriff's department and file a complaint with the FBI's Internet Fraud Complaint Center at www.ic3.gov/.

Posted by Linda Chalat at 12:59 PM | Permalink | Comments (0) | TrackBacks (0)

Many in Colorado are familiar with the tragic story of the missing toddler being towed in Carter Lake this past July. He is now presumed drowned, and authorities report that his life jacket was too big for his 25-pound body.

Boating accidents are not so few and far between. The Coast Guard says that each year about 8,000 boating accidents are reported, resulting in the death of more than 800 people.

The Coast Guard and consumer safety groups want people to become more comfortable with wearing PFDs. To help promote the use of life jackets while boating, the National Safe Boating Council (NSBC) and the National Association of State Boating Law Administrators, in cooperation with the Coast Guard, are promoting a boating safety campaign for the fourth year in a row.

The NSBC reports there are more than 12 million recreational boats in the United States. That organization wants boaters to know that wearing a life jacket is the best way to prevent boating fatalities, because most boating fatalities are drownings.

According to the Coast Guard, between 1995 and 2001, 210 children under the age of 13 died while boating; 121 of these deaths were from drowning. Now the Coast Guard has a new rule requiring that all children under age 13 wear Coast Guard-approved life jackets while aboard recreational vessels that are underway, except when the children are below deck or in an enclosed cabin.

The Coast Guard's rule affects those states that do not have children's life jacket requirements established by statute or rule. For the remaining states, the rule recognizes and adopts the existing state regulation, even if it is less stringent than the Coast Guard rule. Penalties for a boat operator who fails to have all children under the age of 13 wear a life jacket are similar to those for failing to have life jackets on board. Penalties may be assessed up to a maximum of $1,100 for each violation.

Just make sure to get a good fit. For children, have them try on PFDs in the store. Lift the shoulders of the PFD to make sure it doesn't lift up over their chins or ears. If there are more than three inches between your child's shoulders and the life jacket, try a smaller size. Don't forget to have your child test the PFD in shallow water so that you can adjust the straps for the best fit.

Posted by Linda Chalat at 04:56 PM | Permalink | Comments (0) | TrackBacks (0)