Colorado Law Blog

Colorado Avalanche captain Joe Sakic will be sidelined at least three months after he suffered three broken fingers and tendon damage following an accident at his home involving a snowblower. Sakic underwent surgery with a local hand specialist Tuesday night, the team said. Sakic suffered the injury last week at his home.

The Avalanche said Sakic will not discuss the accident with the media until later today, after the team returns from a four-game road trip. But the incident illustrates a danger that is often overlooked when folks are eager to clear driveways and sidewalks.

The Consumer Products Safety Commission reports that snowblowers result in 1000 amputations and 5000 hospital emergency room treated injuries per year; the snowblower ranks as the fourth leading cause of finger amputations each year.

In most of these accidents improper handling of snowblowers is the main cause for such injuries. Patients report injuries after they attempt to clear the auger or discharge chute manually with their hand. Hands and fingers may get caught up in the rotating blade of the snowblower with severe tissue damage resulting. Even in cases where an individual's fingers or hands are not completely severed due to the original injury; physicians treating such wounds explain that quite commonly there is such serious damage that it is simply not possible to repair or re-attach the injured parts.

More surprising is that over the last decade, snowblower accidents caused at least nine deaths each year. Only two of those deaths were due to individuals actually mangled by the machinery. The remainder of these deaths can be attributed to carbon monoxide poisoning. The poisoning occurs when the operator of the snowblower breaths in the exhaust from the snowblower in an enclosed area such as a garage.

The injuries and deaths attributed to snowblower operation has become such a concern that it has prompted investigation in to the matter. The results of studies performed on accidents related to snowblowers has determined that one of the primary factors related to resulting injuries lies in the fact that it is often difficult to move efficiently with a snowblower in operation. An alarming 20% of individuals who sustained injuries while operating snowblowers reported that the accidents occurred when they lost their footing. Further studies also determined that first time users of snowblowers are much more likely to sustain accidents from the equipment than veteran users. It is essential that operators review the owner's manual before attempting to use a snowblower.

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Toy season is upon us - every child's dreams filled with dancing Wii, American Girls and Matchbox cars along with sugar plums. But one in three toys tested was found to contain toxic chemicals such as lead, flame retardants and arsenic, according to a report issued Wednesday by an Ecology Center, a Michigan-based environmental group. The group tested more than 1,500 popular toys for lead, cadmium, arsenic, PVC and other harmful chemicals. They said they found that one-third of the toys contain "medium" or "high" levels of chemicals of concern. Results of the study are presented at www.HealthyToys.org, a project of the Ecology Center to encourage retailers to be responsible in what kinds of products they sell.

The group said it selected toys and children's products that attempted to represent a cross section of the most popular items used by U.S. children. Researchers bought the toys at chain stores including Target, Kmart, Toys R Us, Babies R Us, TJ Maxx, and Wal-Mart, as well as drug stores, dollar stores, on-line retailers and independent toy stores. The study found lead in 20% of the toys tested, and in 3.5% of the toys, or 54 items, levels of lead exceeded the federal recall level for paint, 600 parts-per-million. Children's jewelry is 5 times more likely to contain lead above the toxic 600 ppm-level than other toys. In particular, the report mentioned that several Hannah Montana brand jewelry items tested high for lead.

The American Academy of Pediatrics recommends that children's toys have less than 40 parts-per-million of lead. The levels of lead detected in "many" of the toys was "significantly" above those guidelines, according to the group.

As safety concerns have grown, so have recall of toys sold in the U.S. The number of recalls rose by 19% to 563 for the year ended Sept. 30 compared with the same period in 2007, according to research by Consumers Union, publisher of Consumer Reports magazine. The report said two-thirds of the 43 million products recalled were children's toys, nursery items, and clothing. Imports accounted for 97% of all products taken off the market, with 81% of the products made in Chinese factories.

Congress and the U.S. toy industry took steps this year to strengthen product safety after Mattel Inc. and Spin Master had to pull millions of toys at retailers in the summer and fall of 2007. The toys were found to contain too much lead or be choking hazards. Since then, Mattel, RC2, and Spin Master have made safer toys as indicated by the Consumers Union report which said Mattel and RC2 collectively have had to recall less than 500,000 products since October 2007. In the prior fiscal year, the toy makers recalled more than 20 million toys.

Natural Resources Defense Council and Public Citizen "have gone to court to challenge the Consumer Product Safety Commission's (CPSC) decision to allow makers of children's products containing phthalates to continue selling those goods so long as they were made before a congressional ban takes effect Feb. 10," arguing that ban should be retroactive.

A number of brands say their toys already meet the new federal standards, including Tiny Love, Hasbro, Melissa & Doug and RC2, which includes brands such as Lamaze Infant Development System, Learning Curve and Thomas & Friends. A spokeswoman for Fisher-Price and Mattel says the "vast majority" of toys shipped since this spring meet the new standards. The Toy Industry Association says manufacturers and retailers have been rigorously testing their merchandise for the past year. Major retailers such as Wal-Mart and Toys R Us/Babies R Us also plan to phase out phthalates by Jan. 1, when a California law takes effect.

Once the research and homework has been done and the toys are snug under the tree, can breathe a sign of relief? For just a moment - the Consumer Product Safety Commission in Washington warns that must routinely check those new toys against recall lists on the agency's Web site, cpsc.gov. And if all those toys are stored in a conventional toy chest, be certain that the chest does not have lids that automatically slam shut when a child lets go.

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A student who was suspended for three days by her former high school for criticizing an advanced-placement English teacher on her Facebook page is now suing her principal with the help of the ACLU. The student, now in college, filed
a federal lawsuit over her First Amendment rights with hopes to clear her disciplinary record. In addition to the three-day suspension, she was also removed from AP classes.

She was punished for what the principal called "bullying and cyberbullying harassment towards a staff member," after describing the teacher, in a post that she removed after a few days, as "the worst teacher I've ever met'' and inviting others to join her in expressing "hatred" toward the teacher.

The Third Circuit U.S. Court of Appeals is scheduled to hear oral arguments today in a similar case, Layshock v. Hermitage School District, in which a Pennsylvania school district is appealing a lower court's ruling against it. The trial court found that the district violated a student's First Amendment rights by suspending him for posting sarcastic comments mocking his principal on a MySpace page.

Another Pennsylvania free speech dispute was decided in September, when an eighth-grade student was suspended for 10 days after she created a fake page on MySpace.com that depicted her principal as a pedophile and a sex addict. The student lost her civil rights suit now when a federal judge ruled that the discipline was proper and didn't violate her free speech rights.

"A school can validly restrict speech that is vulgar and lewd and also it can restrict speech that promotes unlawful behavior," U.S. District Judge James M. Munley wrote in his 20-page opinion in J.S. v. Blue Mountain School District.

And in Colorado, a Littleton High School student, Bryan Lopez, was suspended in February of this year for posting critical comments about his school on MySpace.com. The ACLU threatened to file a lawsuit saying the student's suspension was a violation of his First Amendment rights.

As part of its agreement reached on Feb. 20 that allows Lopez back in school, the ACLU agreed not to file its lawsuit while the school said it would remove any record of a suspension from Lopez's record, according to the ACLU.

The ACLU said Lopez's posting was a satirical comment on the poor physical condition of the school, the behavior and demographics of students and staff, lack of resources and the perceived racial biases of teachers and administrators.

Lopez was suspended for five days, but officials then added another 10 days as they mulled over expelling him. The ACLU said Lopez used his home computer to post the message, which wasn't viewable on school computers because of filters, and it was available only to those with a password given out by Lopez.

But it's not just students exercising their first amendment rights on the web - outraged by deposition testimony in a fraud suit against a Houston automobile dealership, a client of a Texas attorney arranged, with the lawyer's help, to post a six-minute excerpt of the deposition on YouTube.

But a state court judge ruled last week that the deposition had to come down because it wasn't part of the public record in the litigation. Although she granted a protective order banning the excerpt, however, the judge declined to sanction attorney Jeffrey Weinstein for posting the excerpt, as the defense had sought.

The dealership contends that Weinstein and others are "us(ing) the discovery process as a means to harass, annoy, embarrass, and mis-characterize" its business dealings with the plaintiff. The plaintiff's lawyer argues that the court's prohibition on his client's posting of the excerpt infringes on her First Amendment rights. Plans are underway to file a written transcript of the deposition at the courthouse, as part of the record in the case, and then post the full deposition on the site.

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The U.S. Consumer Product Safety Commission (CPSC) estimates, nearly 11,000 people were treated in hospitals last year for injuries involving escalators, mostly falls. Escalators carry about 90 billion riders a year, the agency estimates.

Some safety advocates say escalators are inherently dangerous and question the blame recently heaped on Crocs-type shoes, which several children were wearing in highly publicized accidents across the country.

In May, the CPSC warned of the risk of "popular soft-sided flexible clogs and slides" on escalators, saying they were involved in all but two of 77 foot entrapment incidents the agency was aware of since January 2006. In July, Crocs Inc. announced plans to put escalator safety messages on tags on its footwear. Crocs is a Colorado company based in Niwot.

According to news reports, a Singapore girl's big toe was ripped off in November 2006; a 3-year-old girl had to have two toes partially amputated after an April 2007 incident when her shoe got stuck in the teeth of an escalator at an Atlanta airport; and a 4-year-old Virginia boy wearing a pair of navy Crocs lost a toenail in an escalator accident in September 2007 that sent his mother into a panic and landed him in the emergency room.

In February, a New York parent filed a $7 million lawsuit against Crocs, claiming his 3-year-old daughter was "severely and permanently injured" when one of her pink, holed shoes was sucked into an airport escalator last year.

In 1997 the escalator industry created voluntary standards for reducing the size of the gap and the amount of friction along the sides of escalator steps. These measures have become part of the American Society of Mechanical Engineers' escalator standards -- as well as many enforceable building codes across the country.

But many consumer advocates argue that the voluntary standards are not sufficient, that in many states the determination as to whether escalator is within compliance is left to the owner/operator nota a regulatory agency and that older escalators are left without retrofitting to comply with the newer safety standards. There is even a nonprofit organization focused on escalator safety, Elevator Escalator Safety Foundation.

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A judge in Washington state ruled Thursday that a man dying from mesothelioma will not have to be autopsied as a condition of his estate being paid a settlement.

The Superior Court judge ruled that James Ross, 71, could avoid the autopsy based on the "personal moral belief" he claimed without declaring any "religious or ethical considerations." The Washington courts previouslt had a standing order which mandated autopsies as a condition of receiving settlements for mesothelioma, a cancer known to be caused by asbestos.

Ross had argued the rule unconstitutionally required a religious test. Ross v. Saberhagen Holdings Ins., No. 08-2-02434-2 SEA (King Co., Wa.sh, Super. Ct.).

The judge did not invalidate the rule but, as a practical matter, the ruling will probably apply to any mesothelioma claimant.

Ross is dying from mesothelioma, a rare form of cancer that is invariably fatal and is known to be caused only by asbestos. The defendants didn't dispute that Ross has mesothelioma, but insisted on the autopsy as a condition of paying the settlement. For further background on this case, see Man fights his own impending autopsy.

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For many, Grinch and Who-ville are old holiday traditions, but officials in Louisville, Kentucky found that lawyers can ruin even the best of well-intentioned holiday plans.

The city of Louisville had hoped to include a recreation of the iconic Dr. Seuss village and characters as part of its annual holiday celebration, Light Up Louisville. The plans called for an area called "LouWhoVille," complete with costumed characters from the Dr. Seuss classic such as Cindy Lou Who and the Grinch.

But the city cancelled the planned Who-ville display after receiving a cease-and-desist letter from Dr. Seuss Enterprises. "It appears these lawyers' hearts are two sizes too small," Louisville Mayor Jerry Abramson said.

But the cease-and-desist letter from the law firm DLA Piper, which represents Dr. Seuss Enterprises, asserted that the "Who-ville" name and image, as well as the Grinch, are copyrighted and cannot be used without permission. The lawyers denied the city and the Louisville Convention and Visitors' Bureau permission to any use of the characters for the Christmas display and demanded that there be no use of the characters in the future without permission. It threatened legal action if the city did not comply.

A spokeswoman for the mayor's office said the city complied with the request and renamed the display "Lou-ville."

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