Recall Alert

Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On September 16, 2020, the CPSC announced the following recalls related to products that present fire hazards:

  1. MWE Investments Recalls Westinghouse Portable Generators Due to Fire Hazard. According to the CPSC, “[t]he recalled portable generators can leak fuel, posing a fire and burn hazard.”
  2. Monoprice Recalls Ethernet Cables Due to Fire Hazard. According to the CPSC, “[t]he cables do not meet the flammability requirements of the UL 1666 voluntary safety standard, posing a fire hazard when the cable is exposed to a flame.”
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Product Recall

Royal Gourmet Recalls Deluxe Gas Grills; Sold Exclusively at Wayfair.com


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On September 9, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

Royal Gourmet Recalls Deluxe Gas Grills Due to Fire Hazard; Sold Exclusively at Wayfair.com.

According to the CPSC, “[t]he grill’s plastic regulator hose can melt and catch fire, posing a fire hazard.”

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Product Recall

CFMOTO Recalls Recreational Off-Highway Vehicles


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On September 3, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

CFMOTO Recalls Recreational Off-Highway Vehicles Due to Fire Hazard (Recall Alert).

According to the CPSC, “[t]he fuel line fitting on the vehicles can fail to securely lock onto the fuel injector inlet.  This can allow fuel to spill onto the hot engine parts and ignite, posing a fire hazard.”

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Gavel

California Appellate Court Rules Amazon Can Be Strictly Liable for Defective Product


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The California Court of Appeals recently ruled that Amazon.com, Inc. (Amazon) can be held strictly liable for injuries caused by a defective product sold by a third-party vender on its website. Bolger v. Amazon, D075738, 2020 Cal. App. LEXIS 761. The decision in Bolger comes just two months after the United States District Court for the Southern District of Texas reached the same ruling under Texas law in McMillan v. Amazon.com, Inc., No. 18-CV-2242, 2020 U.S. Dist. LEXIS 102025 Continue reading

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Gavel

In Nevada, Custom Sign Manufacturers Can Be Held Strictly Liable


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In Schueler v. Ad Art, No. 75688-COA, 2020 Nev. App. LEXIS 6, the Court of Appeals of Nevada recently considered whether a custom-made sign constituted a “product” for purposes of the doctrine of strict products liability. The court held that the sign ­­–– a large MGM Grand (MGM) sign located atop a 150-foot tall steel pylon –– was a product for the purposes of strict products liability. Thus, the court held that Ad Art, Inc. (Ad Art), who designed, engineered, and managed the production and installation of the sign, could be held strictly liable for injuries to Charles Schueler (Schueler), a service worker who fell and sustained serious injuries. Continue reading

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Product Recall

Pier 1 Recalls Three-Wick Halloween Candles


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control.  On August 19, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

Pier 1 Recalls Three-Wick Halloween Candles Due to Fire and Burn Hazards.

According to the CPSC, “[t]he candle’s high flames can ignite the surface of the wax, posing fire and burn hazards.”

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Recall Alert

Intertex Recalls Blowers


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On August 12, 2020, the CPSC announced the following recall related to a product that presents a fire hazard:

Intertex Recalls Blowers Due To Fire Hazard.

According to the CPSC, “[t]he utility outlets on the side of the blowers are not protected by a circuit breaker.  If the outlet becomes overloaded or short-circuited, it could overheat, posing a fire hazard.”

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Update – Property Owner’s Defense Goes up in Smoke in Careless Smoking Case


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Property owners owe a duty of reasonable care to avoid causing harm to neighboring properties. In Steamfitters Local Union No. 602 v. Erie Ins. Exch., 2020 Md. LEXIS 347 (July 27, 2020) (Steamfitters Local), a matter originally discussed in a June 2019 blog post, the Court of Appeals of Maryland affirmed that, where the property owner knows or should have known that people are habitually discarding hundreds of cigarette butts into a mulch bed along the boundary of the neighboring property, the property owner owes a duty to its neighbors to prevent the risk of fire. Continue reading

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Gavel

First-Dollar Risk Allocated to the Insured Is Not Subject to the Made Whole Doctrine


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Pursuant to the equitable made whole doctrine, where there are limited funds available, an insurer cannot pursue subrogation until the insured has been made whole – i.e., fully compensated – for its injuries. In City of Asbury Park v. Star Ins. Co., No. A-20, 083371, 2020 N.J. LEXIS 746, the Supreme Court of New Jersey (Supreme Court) addressed the question of whether the equitable made whole doctrine applies to first-dollar risk an insured takes on, such as a deductible or self-insured retention (SIR). More specifically, the Supreme Court considered whether the insured, here the City of Asbury Park, was entitled to recover all its $400,000 SIR before the insurer, Star Insurance Company (Insurer) could assert its subrogation rights. The court held that the made whole doctrine does not apply to first-dollar risk allocated to the insured. Continue reading

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Product Fire

Arkansas Federal Court Fans the Product Liability Flames Utilizing the Malfunction Theory


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To establish a product liability claim in Arkansas, the plaintiff must prove that the product was supplied in a defective condition, which rendered it unreasonably dangerous and that the defective condition was the proximate cause of the claimed damage or injury. Ordinarily, a plaintiff relies upon direct evidence of a product defect to establish its product liability claim. However, in some cases, the product sustains so much damage that it is impossible for a plaintiff to obtain direct evidence of a defect. Continue reading

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