Olson v. Saville, 2d Civ. B324465 (Cal. App. Jan 17, 2024)
Posted: May 20, 2024 Filed under: California, Legal Case, Paddlesports, Product Liability, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Etiquette, Increased the Risk, Inherent Risk, Inherent Risk of Surfing, recklessly, Surfer, Surfing, Surfing Etiquette Leave a commentFor a review of this decision see: Surfboarder who cut off another Surfboarder already in the wave is protected by the defense of Primary Assumption of the Risk
Olson v. Saville, 2d Civ. B324465 (Cal. App. Jan 17, 2024)
MARK OLSON, Plaintiff and Appellant,
v.
PATRICK SAVILLE, Defendant and Respondent.
2d Civ. No. B324465
California Court of Appeals, Second District, Sixth Division
January 17, 2024
Superior Court County of Santa Barbara, No. 20CV02207 Hon. Donna D. Geck, Judge
Law Office of Eric A. Woosley, Eric A. Woosley; The Law Offices of Bradford D. Brown, Bradford D. Brown, for Plaintiff and Appellant.
Freeman Mathis &Gary, Albert K. Alikin, Christian E. Foy Nagy, and Christopher J. Fleissner, for Defendant and Respondent.
CODY, J.
In this personal injury case, we hold the doctrine of primary assumption of the risk bars liability for injuries caused by a negligent surfer to a fellow surfer because those injuries were caused by risks inherent in the sport of surfing.
Mark Olson appeals from the order granting summary judgment for respondent Patrick Saville. Appellant contends that triable issues of material fact exist as to whether respondent is protected by the primary assumption of risk doctrine. We disagree and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and respondent were surfing in a group at Miramar Beach in Montecito. Respondent was riding a custom longboard without a leash.[2] Appellant caught a wave. Respondent then “appeared out of nowhere” and “dropped in” on the wave without looking in appellant’s direction.[3] This forced appellant “to make a fast turn correction to his left toward the beach” and to “exit into the white water to his left.” Appellant “grabbed both [of] his board rails (aka sides) and pushed himself and the nose of the board slightly down and into the foam pile of whitewater toward the deeper water and away from respondent.” Respondent was still standing on his board heading toward the shore. As appellant made his exit and ducked into the wave, respondent’s board propelled backward and struck appellant’s torso and back.
Appellant sued respondent for negligence. He alleged that respondent “intentionally entered the wave and intentionally cut off appellant’s path of travel, thereby forcing appellant to exit the wave.” He further alleged that respondent’s “failure to use a leash to control [his] longboard” and his use of a “sharpened and deadly fin” was “reckless and displayed a w[a]nton disregard for the safety of others.” Respondent moved for summary judgment on the ground that appellant’s cause of action was barred under the primary assumption of risk doctrine. The trial court granted the motion, finding “the inherent risks of the sport of surfing include surfers ‘dropping in’ on other surfers, not wearing leashes while riding longboards of the type used by respondent, and using surfboards that have sharp fins.”
DISCUSSION
Appellant does not dispute that the primary assumption of the risk doctrine applies to surfing. He contends, however, that summary judgment is not appropriate because triable issues of material fact exist as to whether respondent acted recklessly or increased the sport’s inherent risks.
Standard of Review
“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)[4] A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the ’cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); § 437c, subd. (p)(2).)
“A defendant seeking summary judgment on the basis of primary assumption of the risk must establish ‘that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.’ [Citation.]” (Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1087.) If the defendant meets this burden, the burden of production shifts to the plaintiff to “set forth the specific facts showing that a triable issue of material fact exists.” (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850, fn. omitted.)
“On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
Primary Assumption of Risk
The primary assumption of risk doctrine “precludes liability for injuries arising from those risks deemed inherent in a sport.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) It “rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration-or cause abandonment’ of the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 (Nalwa), quoting Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 (Kahn).) The doctrine applies both to sports and recreational activities “‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, at p. 1156, quoting Beninati v. Black Rock City, LLC. (2009) 175 Cal.App.4th 650, 658.)
“[D]efendants generally do not have a duty to protect the plaintiff from the risks inherent in the sport, or to eliminate risk from the sport, although they generally do have a duty not to increase the risk of harm beyond what is inherent in the sport.” (Kahn, supra, 31 Cal.4th at p. 1004, citing Knight v. Jewett (1992) 3 Cal.4th 296, 315-316 (Knight), italics added.) A coparticipant breaches this duty only if he “intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Knight, at p. 320.) “[C]onduct is within the range of ordinary activity involved in a sport if that conduct cannot be prohibited without deterring vigorous participation in the sport or otherwise fundamentally altering the nature of the sport.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1396.) Determining the nature of a defendant’s legal duty (and the inherent risks that flow from the activity) “depends heavily on the nature of the sport itself.” (Knight, at p. 317.)
Appellant’s Injuries Resulted from the Inherent Risks of Surfing
“Judges deciding inherent risk questions under Knight may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” (Nalwa, supra, 55 Cal.4th at p. 1158.) Courts generally do not consider the legal conclusions of expert declarations but can receive “expert testimony on the customary practices in an arena of esoteric activity for purposes of weighing whether the inherent risks of the activity were increased by the defendant’s conduct.’ [Citation.]” (Kahn, supra, 31 Cal.4th at p. 1017.) Our de novo review includes such declarations to the extent they help us understand the sport of surfing. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 472-473, italics omitted [“A court in its discretion could receive expert factual opinion to inform its decision on these issues, particularly on the nature of an unknown or esoteric activity, but in no event may it receive expert evidence on the ultimate legal issues of inherent risk and duty.”]; Kahn, supra, 31 Cal.4th at p. 1017 [same].)
California courts have applied the doctrine to coparticipants in a variety of sports, such as snow skiing and other non-contact sports, but not yet to surfing. (See, Cheong v. Antablin (1997) 16 Cal.4th 1063, 1066 (Cheong) [holding the doctrine barred a skier’s negligence claim against another skier who unintentionally injured him in a collision]; Shin v. Ahn (2007) 42 Cal.4th 482, 486 (Shin) [extending the doctrine to apply to the non-contact sport of golf].) We note that snow skiing and surfing have much in common: (1) “both sports involve individual participants that use nature, either a mountain slope or wave, as a propulsion mechanism”; (2) “[b]oth require similar equipment in the form of skis, snowboard, or surfboard to participate”; and (3) “the most important similarity between skiing and surfing is the use of the right-of-way custom to promote safety and order among participants.” (Caprara, supra, 44 Cal. Western L.Rev. at p. 562.)
Respondent submitted the declaration of Ian Cairns, a champion surfer and coach, who opined that surfing is an “extreme sport” with “many inherent risks.” Cairns stated it is “extremely common for surfers to ‘wipe out'” and lose control of their board given the variability of ocean conditions. “Because ‘wipeouts’ are so common, it is a known risk that a surfer may collide with another surfer, or another surfer’s board.” He explained the sport is largely regulated by unwritten safety customs and practices he referred to as “‘surfing etiquette.'” (citing Caprara, supra, 44 Cal. Western L.Rev. at p. 571.) He stated, “[t]hese rules encompass such things as priority, right-of-way, and sharing waves.” Nonetheless, “violating this surfing etiquette is common among surfers.” He further opined it is “not uncommon for surfers to surf without a leash” and “[m]any longboard surfers particularly enjoy the challenge and freedom of surfing without a leash” which otherwise could interfere with their footwork and speed. Lastly, Cairns noted that surfboards “contain between one and four fins, which assist the board with speed and stability” and that the fins are “very sharp and can inflict significant injury.”
Appellant’s expert did not oppose the core components of Cairn’s opinion. He did not dispute that surfers often violate well-established rules of etiquette. The experts appear to agree that surfers commonly collide and lose control of their boards; that boards have sharp fins that can cause injury; and that some surfers choose to forego leashes because they can inhibit speed and agility. The undisputed evidence shows that appellant’s injuries resulted from these risks. We agree with the trial court that the primary assumption of the risk doctrine bars appellant’s negligence claim absent evidence that respondent recklessly or increased the sport’s inherent risks.
There Is No Evidence Respondent Acted Recklessly or Increased the Inherent Risks of Surfing
Appellant relies primarily upon surfing expert Shaun Tomson to support his contention that respondent’s conduct was reckless. Tomson explained that “[o]ver time, the sport of surfing has adopted the Surfing Code and Rules of Etiquette.” According to Tomson, “surfers have a self-managed obligation to observe the Surfers Code and Rules of Etiquette and not increase the risk of harm to others in the water.” He described the rules of etiquette as follows: (1) observe the right of way of others; (2) look for other surfers before entering the wave; (3) do not interfere with, “drop in” or cut off surfers already riding a wave; (4) hold onto and do not let go of your board; (5) wear a surf leash so you do not lose control of your board; and (6) be aware and communicate with others around you. Tomson opined that respondent’s blatant disregard of these rules constituted a “conscious and wanton reckless disregard” for the safety of fellow surfers, especially considering his experience in the sport.
Tomson supported his conclusions by citing the “Leash/Legrope Policy” found in the International Surfing Association Rule Book (ISA), which he described as “the World Governing Body for [s]urfing and all related activities.” The policy reads: “As a risk management precaution . . . the ISA has a mandatory leash/legrope policy at events, due to the potential risk to other participants.” (ISA Rule Book &Contest Administration Manual, September 2023 Section D Competition Rules, subsection xvii (a), p.34.) The policy further states, “[f]ree surfing with or without a leash is at the rider’s discretion however the ISA recommends the use of a leash if there is a possible danger to third parties.” (Id., subsection xvii (b).)
Appellant analogizes respondent’s failure to use a leash to the snowboarder’s failure to use a retention strap in Campbell v. Derylo (1999) 75 Cal.App.4th 823. Campbell reversed the trial court’s granting of summary judgment for plaintiff on the grounds of primary assumption of risk, finding defendant’s failure to use a retention strap “increased the inherent risk of injury to coparticipants from a runaway snowboard.” (Id., at p. 829.) It noted that a local ordinance as well as a “Skier Responsibility Code” posted at the ski resort required their use. (Ibid.) The court also found that using a strap “would not impede or alter the sport of snowboarding” or “chill or deter vigorous participation.” (Id., at p. 830.) We do not consider Campbell analogous. No law governs the use of surfboard leashes. No signs were posted requiring their use at Miramar Beach. More significantly, appellant does not dispute Cairns’ opinion that a leash can alter the nature of the sport by interfering with a longboard surfer’s “footwork and speed” and by posing a tripping hazard to surfers who “walk” on their board. (Cf. Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146, 166 [ice hockey expert’s testimony that “open ice check[ing]” in a “no-check” game increased the sport’s inherent risks raised triable issues of fact to defeat summary judgment].)
Appellant’s expert merely described what could be done to reduce the risks inherent in surfing. Showing respondent could have acted with more caution does not establish he acted recklessly. Reckless conduct is more than “‘”inadvertence”‘” or “‘”a failure to take precautions.”‘” (Towns v. Davidson, supra, 147 Cal.App.4th at p. 470, citing Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) It requires a “‘”deliberate disregard” of the “high degree of probability”‘” that an injury will occur. (Ibid.) Although both experts acknowledged respondent may not have followed the rules of etiquette, we are wary of relying too heavily on such guidelines when defining the scope of an activity’s inherent risks. (See, e.g., Shin, supra, 42 Cal.4th at p. 497, fn. 9 [failure to follow golf etiquette of yelling “fore” to minimize chance of hitting other golfers with ball does not justify imposing liability].)
The undisputed evidence here showed that failure to follow the rules of etiquette is common in the surfing community. Appellant admitted: (1) he has witnessed other surfers riding a longboard without a leash; (2) a leash could obstruct some movement of an advanced surfer; (3) he has witnessed prior collisions between surfers; (4) he has witnessed another surfer failing to maintain control of their board; and (5) he personally has had surfers “drop-in” or “shoulder-hop” on his wave. Respondent’s similar conduct, it follows, was not reckless or outside the range of the ordinary activity in surfing.
“‘By eliminating liability for unintended accidents, the doctrine [of primary assumption of the risk] ensures that the fervor of athletic competition will not be chilled by the constant threat of litigation from every misstep, sharp turn and sudden stop.’ [Citation].” (Cheong, supra, 16 Cal.4th at pp.1071-1072.) No trier of fact could reasonably find that respondent’s conduct fell outside of the protection of the primary assumption of risk doctrine. Vigorous participation in surfing “likely would be chilled if legal liability were to be imposed” in these circumstances. (Knight, supra, 3 Cal.4th at p. 318.)
DISPOSITION
Judgment is affirmed. Respondent shall recover his costs on appeal.
We concur: GILBERT, P. J., YEGAN, J.
———
Notes:
[1] We rely on undisputed facts and allegations in the complaint.
[2] A longboard is a board that is “typically longer than nine feet in length.” (Paul Caprara, Surf’s Up: The Implications of Tort Liability in the Unregulated Sport of Surfing (2008) 44 Cal. Western L.Rev. 557, 573, fn. 90 (Caprara).) Respondent’s longboard was 10 feet 4 inches long. A leash is a cord that attaches the ankle of the surfer to the tail end of the board.
[3] “Dropping in” or “shoulder-hopping” describes a surfer getting in the right of way of another surfer who is surfing the same wave.” (Caprara, supra, 44 Cal. Western L.Rev. at p. 571.)
[4] All unlabeled statutory references are to the Code of Civil Procedure unless otherwise stated.
———
G-YQ06K3L262
Manufactures Continuing Obligations about the Products they Create and Sell
Posted: May 15, 2024 Filed under: Product Liability | Tags: Continuing Duty to Warn, Manufacturer, Product liability Leave a comment1. You must constantly keep your manual and your website up to date. Any changes in how your product is used or any warnings about the product must be communicated as quickly as possible to all past, present, and future buyers and users of your product.
2. In some states, this duty extends to information you find out about how your product is being used or ways it should not be used after the product has been sold. In the past once the product was sold the duty to warn of the ways to be hurt using a product ended. However, many states are extending this duty to all users and how the product may be used or misused now or in the future.
3. You should maintain a list of your purchasers of your product to notify them of changes to the product, new warnings, etc. This is not a marketing list. This is a list to CYA. You may modify your customer agreements to make this possible and to differentiate between legally required notifications and marketing and the difference in opting out of these emails.
4. If you find out your product is being used in a way that it should not be used, you need to notify anyone using the product incorrectly as a group and owners of the product.
5. Product liable manuals and warnings NEVER stop being created or changed. Always be thinking about how a “stupid human” could create a new way to use your product to get on TV, either as a stunt or a news story.
Information to Remember when Creating Warnings and Warning Labels
.
A. Using a larger, bold, or different front always helps have the warnings noticed.
B. Warnings on the Product or in the manual must be easily identified as such by the use of color, size, type of font, or a symbol.
C. Using Bright Colors like Yellow and Orange helps your customers locate the warnings. If your manual is only going to be in black and white, use bold fonts, symbols, and boxes to catch your customer’s eye.
a. The Black Triangle with a yellow or orange fill with an exclamation point in the triangle is a well-known way to identify a warning.
D. At the same time, make sure the warnings are necessary. Too many warnings and the warnings might be overlooked.
E. Make sure the warnings are located where the information that triggers the warning is located in the manual. Listing warnings at the end of the manual is not sufficient.
SRAM Recalls Bicycle Gear Hubs Due to Crash and Injury
Posted: February 23, 2019 Filed under: Cycling, Product Liability | Tags: 3 speed hub, Brake, brake failure, i-Motion 3, internal gear hub, SRAM, three-speed hub Leave a commentName of Product: SRAM i-Motion 3 internal gear hubs (coaster brake version) for bicycles
Hazard: The brakes in the gear hubs can fail, posing crash and injury hazards to the rider.
Recall Date: February 21, 2019
Recall Number: 19-069
Remedy: Refund
Consumers should immediately stop using bicycles with the recalled gear hubs and contact SRAM for instructions on how to receive a partial refund.
Consumer Contact: SRAM at 800-346-2928 from 10 a.m. to 7 p.m. ET Monday through Thursday and 10 a.m. to 6 p.m. ET on Friday or online at http://www.sram.com or http://www.zipp.com and click on “Recall Notice” for more information.
Pictures available here: https://www.cpsc.gov/Recalls/2019/SRAM-Recalls-Bicycle-Gear-Hubs-Due-to-Crash-and-Injury-Hazards
Recall Details
Units: About 7,000 (in addition, 700 were sold in Canada)
Description: This recall involves SRAM® i-Motion 3 three-speed internal gear hubs with a coaster brake installed on bicycles with no redundant braking system. The recalled hubs were sold on the following Electra® model bicycles: Electra Cruiser Custom 3i, Electra Coaster 3i, Electra Hawaii 3i, Electra Hawaii 3i 24 and Electra Straight 8. The recalled hubs were also sold as aftermarket parts for other bicycles. The recalled hubs have “SRAM i-Motion 3” printed on the hub shell and a brake arm extending from the axle of the hub.
Incidents/Injuries: SRAM has received five reports of brake failure, resulting in one minor injury to a rider.
Sold At:Specialty bicycle retailers nationwide from April 2010 through December 2018 for between $400 and $800 for Electra bicycles equipped with the recalled hubs and for about $90 for the recalled aftermarket gear hubs
Manufacturer(s):Heng Ying Machinery Co., Ltd. of Taoyuan City, Taiwan
Distributor(s):SRAM LLC, of Chicago, Ill.
Manufactured In: Taiwan
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2017 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council,
Not going to worry about California Proposition 65? Here are some facts from the California Attorney General’s office that may change your mind or at let you know how much money you are going to lose!
Posted: February 19, 2019 Filed under: California, Product Liability | Tags: California Proposition 65 Leave a commentBefore filing a lawsuit for a violation of California 65 violations law firms have to file a 60-day notice letter with the California Attorney General’s Office. After the settlement or lawsuit, the attorneys must report those (and the attorney general probably has to approve the settlements).
Here are some numbers and examples of the manufacturers and settlement amounts. Remember these settlements are prior to the new fines going into effect. After August 30, 2018 I suspect these numbers are going to skyrocket.
|
Year |
Amount of Settlements |
Civil Penalty |
Attorney Fees & Costs |
Total |
| 2014 | $29,482,280 | $4,915,648 | $21,047,746 | $55,447,688.00 |
| 2015 | $26,266,261.00 | $5,108,341.00 | $17,862,441.25 | $55,447,688.00 |
| 2016 | $26,226,761 | $5,102,341 | $17,828,941 | $49,160,059.00 |
| 2017 | $25,767,500 | $4,843,142 | $19,486,362 | $50,099,021.00 |
| $107,742,802.00 | $19,969,472.00 | $76,225,490.25 | $210,154,456.00 |
That is a lot of money but those are totals. If you look at averages it is even scarier numbers.
|
Year |
Total Settlement costs for the year |
Number of Settlements |
Average |
| 2014 | $55,447,688.00 |
663 |
$83,631.51 |
| 2015 | $55,447,688.00 |
583 |
$95,107.53 |
| 2016 | $49,160,059.00 |
582 |
$84,467.46 |
| 2017 | $50,099,021.00 |
688 |
$72,818.34 |
References
2014 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/alpert-report2014.pdf
2015 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2015-prop65-full-rpt.pdf
2016 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2015-summary-report.pdf
2017 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2017-summary-settlements.pdf
From this site you can search the 60-day notices and see who has been targeted. Searches have found the following retailers and manufacturers on this site. https://oag.ca.gov/prop65/60-day-notice-search
| Retailer Named |
Manufacturer Named |
| Clavey Paddlesports | AIRE Inc. |
| Backcountry.com | Bear Vault Food Cannister |
| Backcountry.com | Canyonwerks Bag |
| Backcountry.com | Katadyn North America Inc |
| Backcountry.com | Sawyer Paddles & Oars |
| Backcountry.com | Tender Corporation; Adventure Medical Kits |
| Backcountry.com | Amphipod, Inc |
| REI | Topeak, Inc |
| REI | Todson, Inc |
| REI | Feedback Sports, LLC; |
| REI | Advanced Elements, Inc. |
| REI | Eagle Nest Outfitters, Inc |
| REI | CAMP USA, Inc. |
| REI | Shock Doctor Inc |
| REI | Amphipod, Inc. |
| REI | Bombardier Recreational Products, Inc. |
| REI | Mountain Safety Research, Inc. |
| REI | Cascade Designs, Inc. |
| REI | Snow Peak USA, Inc. |
| REI | Recreational Equipment, Inc. |
| REI | Kelty, Inc.; American Recreation Products, LLC |
| REI | Katadyn North America, Inc. |
| REI | Recreational Water Products, Inc. |
| REI | Bell Sports, Inc. |
| REI | Specialized Bicycle |
| REI | Shimano, Inc.; |
| REI | Scott USA |
| REI | Raleigh America |
| REI | Quality Bicycle Products, Inc |
| REI | Pacific Cycle, Inc |
| REI | Kung Hsue She |
| REI | Iron Horse Bicycle, LLC |
| REI | Giant Bicycle, Inc |
| REI | G. Joannou Cycle Co |
| REI | Fuji American Advanced Sports, Inc |
| REI | Felt Bicycles |
| REI | Electra Bicycle Company, Inc |
| REI | Dynacraft BSC, Inc |
| REI | Cycleurope U.S.A., Inc |
| REI | Cannondale Bicycle Corp. |
| REI | Chia Cherne Industry Co. Ltd |
Two Simple searches and 42 results and the big settlements have not started.
Do Something
If you are a manufacturer selling in the USA contact me NOW!
Manufacturers Checklist for California Proposition 65
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
Marker Recalls Kingpin Ski Bindings Due to Fall Hazard
Posted: October 11, 2018 Filed under: Product Liability, Skiing / Snow Boarding | Tags: Binding, CPSC, Kingpin, Kingpin Ski Binding, Marker, Marker Kingpin, Recall, Ski binding Leave a commentRecall Date: October 9, 2018
Recall Number: 19-006
Name of Product: Kingpin 10 and Kingpin 13 alpine touring ski bindings
Hazard: The steel pins in the toe unit can break and reduce the release force of the binding, causing a fall hazard.
Remedy: Replace: Consumers should immediately stop using these bindings and return them to a Marker authorized retailer to obtain a free replacement toe unit. Consumers should bring their boots to be sure their bindings are adjusted correctly.
Consumer Contact: Marker USA at 800-453-3862 from 8:30 a.m. to 5 p.m. ET, email at kingpin.exchange@mdv-usa.com or online at https://www.marker.net/en-us/ and click on More Info in the recall section for more information.
Pictures available here: https://www.cpsc.gov/Recalls/2019/Marker-Recalls-Kingpin-Ski-Bindings-Due-to-Fall-Hazard
Recall Details
Units: About 4,100 (in addition, about 2,200 were sold in Canada)
Description: This recall involve s 2017-2018 Kingpin models 10 and 13 ski binding, with a black body and gold or copper accent coloring. The bindings are used with alpine touring ski boots with metal pintech inserts in the toe of each boot. The recalled toe units have heel units with serial numbers on the back in the following ranges: Kingpin 10 (337804 – 418632) and Kingpin 13 (337798 – 411728).
Model Number Product Name Accent Color
7733R1MA KINGPIN 10; 75 – 100 mm gold
7733R1MB KINGPIN 10; 100 – 125 mm gold
7933R1MA KINGPIN 13; 75 – 100 mm gold
7734R1MA KINGPIN 10 Demo; 75 – 100 mm gold
7934R1MB KINGPIN 13 Demo; 100 – 125 mm gold
7933R1MB KINGPIN 13; 100 – 125 mm gold
7733S1MA KINGPIN 10; 75 – 100 mm copper
7733S1MB KINGPIN 10; 100 – 125 mm copper
7933S1MA KINGPIN 13; 75 – 100 mm copper
7933S1MB KINGPIN 13; 100 – 125 mm copper
7734S1MA KINGPIN 10 Demo; 75 – 100 mm copper
7934S1MB KINGPIN 13 Demo; 100 – 125 mm copper
Incidents/Injuries: None reported
Sold At: Specialty ski and backcountry equipment stores nationwide and online at evo.com, backcountry.com, and theskimonster.com from March 2017 through April 2018 for between $500 and $650.
Manufacturer(s): Marker CZ, of Czech Republic
Importer(s): Marker USA, of Lebanon, N.H.
Manufactured
In: Czech Republic
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2017 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council,
Garmin: You don’t know what you are talking about, you are just a consumer! Jim: For the third time in 3 years I find out I was right. Garmin: no, we are not wrong therefore you are not right.
Posted: September 19, 2018 Filed under: Product Liability | Tags: Edge 100, Garmin, Garmin Edge 1000, Garmin Support, Garmin Tech Support, Synch, Update Leave a commentGarmin updates are messing up their products. When that happens, their tech support says it is your fault or if out of warranty, broke. No specific instance of buy another one, but what else can you do?
Below is the latest email message trail with Garmin Tech Support. The problem started when my Garmin Edge 1000 could not be found by my computer. Information was downloading by Wi-Fi but I could not get my Garmin to work.
In the process of working on my Edge 1000 to get it to work again, I did two factory resets. I did a boot block. Each time you have to sit down with your Garmin and re-enter all the information and hook up all your sensors, etc. I have four different bikes I use my Garmin with.
I took my Edge 1000 to 2018 Summer @OutdoorRetailer and had the people at the Garmin booth try and get my Edge 1000 to work. No luck.
As you can see from the last email, Garmin Tech Support determined that the pins on my Edge 1000 were busted and my Garmin was sort of dead.
I went for a ride 2 days ago and to recharge the battery hooked it up to my computer again. While looking for a file on my computer I noticed my Garmin Edge 1000 was there, another drive.
I clicked on Garmin Express, the software that links to your Garmin product so you can sync, upload or download info. My Edge 1000 was there and it synched.
Here is the email conversation with Garmin
Hi Jim,
The port on the back of the Edge should have four pins, two for power and two for data. Most likely the data pins are damaged. If you have any other questions or require further support please do not hesitate to let us know or visit our support center (https://support.garmin.com/en-US/).
US: 1.888.442.7646 Canada: 1-866-429-9296 Monday through Friday, 7AM to 7PM. Central Standard Time. Closed Holidays.
Thank you for choosing Garmin,
>> Sent: 24/07/2018 08:12
I appreciate the offer but my edge is way too old and has been replaced once already.
What I find confusing is it can be charged. It just can’t be found? That is a connection issue?
Slow to respond because I’m at the outdoor retailer tradeshow. I’ll see the Garmin sales team today.
More later.
THANKS
Jim
From: Product.Support@garmin.com <Product.Support@garmin.com>
Hello Jim,
>> I am sorry about the issues you are having today. I would be happy to work with you towards a resolution today. It seems like the port on the back of the device is damaged. Does the port on the back of the device look damaged or corroded? We suggest cleaning it out with something like canned air if you haven’t yet. If this doesn’t resolve your issue your device may need to be exchanged.
• What is the serial number for your Edge? It is located on the back, underneath the weather cap.
• How long have you had the device?
o For more information about our warranty policies, please visit: https://www.garmin.com/en-US/legal/consumer-limited-warranty
Once we have the above information we will be able to provide further support. If you have any other questions or require further support please do not hesitate to let us know or visit our support center (https://support.garmin.com/en-US/).
>> US: 1.888.442.7646 Canada: 1-866-429-9296 Monday through Friday, 7AM to 7PM. Central Standard Time. Closed Holidays.
Thank you for choosing Garmin,
>> Original Message …
>> >> From: jhmoss@gmail.com
>> >> To: Product.Support@garmin.com
Three computers do not recognize my edge 1000. All have Garmin Express. All know I have an Edge 1000 and ate least one other product. None of them can find my edge 1000. I have tried different USB cables, I have tried using USB hubs and plugging directly into a computer USB port. I have rebooted the computer. the Edge 1000 was just factor reset also and it is still not recognized. It is currently plugged into the original computer I have used for the past 3 years to recognize it and it is “searching.” I let it search for 24 hours. Unplug, go for a ride and plug back in.
I also cannot set up the WIFI in the Edge 1000 because of this.
Jim Moss
On Tue, Mar 24, 2015 at 11:31 PM, James H. (Jim) Moss <jhmoss@gmail.com> wrote:
Did a full factory reset and it still is not being found.
Tried my third cable. Still not being found.
Restarted my computer, still not found.
By the way, I rarely use Garmin for anything Map my Rides and Ride with GPS and they still cannot find the Edge 1000 or my Fenix 2. Nor is windows explorer finding them.
I’m also getting error messages that the communicator plug in is not working.
I have tried switching to different USB ports, 3.0 and 2.0 working from hubs or directly to the computer and still nothing. I just started getting Unknown USB Device messages when I just switched USB ports again.
Garmin Connect did find my Garmin Memory card just now. Memory Card (f:\) however Windows Explorer is not showing an F drive.
Both the Fenix 2 and the Edge 1000 are charging. The Edge 1000 keeps searching for satellites no matter what I do. Garmin Express can’t find anything
Jim
From: Product.Support@garmin.com [mailto:Product.Support@garmin.com]
Dear Jim Moss,
Thank you for contacting Garmin International.
I am sorry to hear that you are still having issues with your Edge 1000. I would be happy to assist you with this.
Have you tried restarting your computer? If that does not work we may need to master reset the device,
There are a few instances in which it may be necessary to perform a master reset on the Edge. A master reset should be performed if the device is:
• Not functioning properly
• Needing to be restored to factory default settings
• Not receiving a satellite signal
• To bring up the language selection prompt if incorrect language text is displayed
• Unable to pair accessories2, such as a heart rate monitor or speed/cadence sensor
All settings, workouts and satellite data may be erased when resetting the GPS. Workouts can be backed up in Garmin Connect. If you wish to keep your personalized settings, you will need to backup your device.
To perform a master reset:
1. Power device off
2. Press and hold Lap and Start/Stop
3. Power device on while still holding both buttons
4. Continue holding buttons when the Garmin “splash” screen appears
5. Release buttons when Garmin “splash” screen disappears
The reset is successful if, once powered up, the device proceeds into the initial setup wizard. Once the reset and setup wizard are complete, place the device outside with a clear view of the sky for a minimum of 20 minutes to acquire satellite data.
If you have additional questions or concerns, please respond to this email or feel free to call us.
We are available Monday-Thursday 8:00am-6pm CST and Friday 8:00am-5:00pmCST. Closed holidays.
Garmin Product Support (800)800-1020
>> Original Message …
>> >> >> From: jhmoss@gmail.com
>> >> >> To: Product.Support@garmin.com
Did not change anything. Garmin Express can’t find the Edge 1000 nor can the computer.
From: Product.Support@garmin.com [mailto:Product.Support@garmin.com]
>> >> >> Sent: Tuesday, March 24, 2015 11:31 AM
>> >> >> To: jhmoss@gmail.com
I’m learning. If I start a ride and none of my sensors are connected then I know that my Edge has been updated by Garmin. I have to start playing around, eventually stopping the ride to re-connect the sensors. I have a dozen hour long rides that recorded 7 minutes of riding and jumps on my bike for miles until I finally got tired of trying to reconnect the sensors. I give up and work on them when I get home.
Update 1
I had not used my Edge 1000 for over a month. It was connected to my computer with the same USB cable I had used for the past year. One day I looked at it and realized it had connected again. I opened Garmin Express and voila it was there!
So, with no input on my part it is now working again.
Update 2
I tweeted about these issues before I wrote this article. I received the following from Garmin
More
Replying to @RecreationLaw
Hi Jim, I’d be happy to review your situation. Please send us a DM with the details as well as the email address you used when contacting support. -MR
-
Jim, Thank you for the information and your patience with us over the extended Holiday weekend. Just to clarify, the Product Support associate was offering a possible cause for the issue you described. You claimed that a software update resolved your issue. However, the most recent update for the Edge 1000 was released in mid-March. I’ve looked over the software change history for the Edge 1000, but I see nothing mentioning any fix to connectivity issues. The updates included in 14.70, released mid-March as I mentioned, were: •Added Connect IQ 2.4.2 support. •Fixed an issue that could cause the device to crash when syncing segments. •Fixed an issue with the backlight not turning on consistently. •Fixed an issue with the user’s FTP resetting after changing the power zone configuration. I can understand your frustration and that you’re dissatisfied. Our associates have been assisting you as best they can with the information they have. Your device was believed to be up-to-date because you had been in contact with us multiple times since the software released in March, you were having issues with connectivity, and we currently have no open tickets that I can find regarding that type of issue on the Edge 1000. The suggestion that the data pins might have been damaged, dirty, or corroded was not an attempt at passing the buck, but rather a way for us to determine the cause of the issue you were experiencing. It sounds like updating the device resolved the issue for you, though looking at the change log, I don’t see how/why that would have worked or why an update would have presented itself if you’d already updated the product since the last release in March. Nevertheless, I’m glad to hear that things are running smoothly again. Thank you, -XXXX
Sep 4
-
The device was plugged in to a USB port since bringing it back from OR so nothing changed for a couple of weeks. I’ll correct my statements based on this, but honestly, based on my history with Garmin, I don’t buy it. https://recreation-law.com/2018/04/04/i-took-my-garmin-vivosport-off-in-fact-im-done-with-it/ …
https://recreation-law.com/2018/02/28/i-love-garmin-products-i-hate-garmin/ …
So, what is up? Could it be fate (not love just something out of my control.) or are map updates enough to mess with my Edge 1000. Or am I off my rocker and just wrong about everything?
The reason why I’m guessing that even a map update, which seems to occur daily, can affect the rest of the Edge 1000 is because my sensors go offline, all of them more times a year than Garmin says they update the Edge 1000
I don’t know. I and felt obligated to provide Garmin’s side of the story. However, part of me does not buy it.
I’ll be at Interibke next week, I’ll see if any tech’s there have an opinion.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
Marker is recalling Kingpin Models 10 and 13
Posted: August 7, 2018 Filed under: Product Liability, Skiing / Snow Boarding | Tags: Kingpin, Kingpin 10, Kingpin 13, Marker, Product Recall, Steel Pin, Toe Piece Leave a comment
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I’m at the Summer Outdoor Retailer Tradeshow See you there?
Posted: July 23, 2018 Filed under: Adventure Travel, Product Liability | Tags: Outdoor Retailer, Summer Outdoor Retailer, Tradeshow Leave a commentSFIA Partners with World Federation to Promote Global Product Labeling Database
Posted: July 13, 2018 Filed under: Product Liability | Tags: CLR, Labeling, Labeling Database, Manufacturer, Packaging Database, SFIA, WFSGI, World Federation to Promote Global Product Labeling Database Leave a comment |
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ORTOVOX Recalls Avalanche Transceivers Due to Loss of Emergency Communications Capability
Posted: July 10, 2018 Filed under: Product Liability, Skiing / Snow Boarding | Tags: Beacon, Ortovox, Recall, S3+, Transceiver, Update Leave a commentHazard: The transceiver can fail to work properly due to a software error and fail to transmit the position of survivors of an avalanche, resulting in delayed search and rescue operations.
Remedy: Repair
Consumers should immediately stop using the recalled transceivers and return them to Ortovox for a free repair, including free shipping.
Consumer Contact: ORTOVOX toll-free at 877-384-9252 from 8 a.m. to 5 p.m. MT Monday through Thursday, email at ortovox.warranty@deuterusa.com or online at http://www.ortovox.com and click on RECALL 3+ for more information.
Units: About 20,000 (In addition, about 7,000 were sold in Canada)
Description: This recall involves Ortovox avalanche transceivers, model numbers 1137000006, 1137000001 and 1137000002. They were sold in black/blue (model number 1137000006), black/black (model number 1137000001) and neon green (model number 1137000002). The transceiver is used as a beacon to locate an individual in the event of avalanche burial. ORTOVOX and 3+ are printed on the top of the device. In the open/receive position, the top half of the transceiver displays a blue screen with green border that displays an image and distance reading of the buried individual. The transceivers measure about 5 inches long by 3 inches wide by 1 inch thick in the closed/transmit position. All transceivers manufactured from 2010 through 2018 are included in the recall. The manufacture date is printed inside the battery door on the back of the transceiver with a roman numeral representing the quarter of the year and a two-digit number referring to the year. For example, a manufacture date of IV/17 represents the fourth quarter. The year of manufacture is five years earlier. In this case, the transceiver was manufactured in the fourth quarter of 2012.
Incidents/Injuries: None reported
Sold at: Outdoor specialty stores, ski shops nationwide and direct to avalanche professionals, search and rescue personnel and mountain guides from July 2010 through April 2018 for about $350.
Importer: Deuter USA, of Longmont, Colo.
Distributor: Ortovox, of Germany
Manufacturer: ORTOVOX Sportartikel GmbH, of Germany
Manufactured in: Germany
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2017 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council,
Consumer Product Safety Commission and Recalls: A Primer
Posted: May 30, 2018 Filed under: Product Liability | Tags: Consumer Product Safety Council, consumer protection, CPSC, Federal Government, Outdoor Industry, Recalls, Rescue Equipment, Safety Equipment Leave a comment1. Consumer Product Safety Commission (CPSC) only has jurisdiction over consumer products.
To define “consumer products” under the CPSC you start with everything and then subtract from everything the following.
- Food
- Drugs
- Cosmetics
- Medical devices
- Tobacco products
- Firearms and ammunition
- Motor vehicles
- Pesticides
- Aircraft
- Boats
- Fixed site amusement rides
The classification is also identified as anything that is:
- For sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise;
- For the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise (15 U.S.C. § 2052).
The term in recreation then is an outdoor recreation, adventure travel and a cycling catch all. All outdoor products are considered consumer products and subject to the CPSC.
Bicycles are a special classification of the CPSC over which the CPSC has broad powers and greater authority and control.
2. Who Must Report if you are in the OR Industry?
Manufacturers, importers, distributors and retailers are all equally liable under the CPSA (Consumer Product Safety Act) and are all equally responsible to report defective products (15 U.S.C. § 2064(b)). The person who brings the product into the US if it is not manufactured in the US is responsible along with all other people in the chain of distribution.
A “distributor” is defined as “a person to whom a consumer product is delivered or sold for purposes of distribution in commerce, except that such term does not include a manufacturer or retailer of such a product (15 U.S.C. § 2052(a)(7)). Consequently, the definition of a distributor is very broad and covers any entity from the docks to the retailer.
A “retailer” is defined as “a person to whom a consumer product is delivered or sold for purposes of sale or distribution by such person to a consumer (15 U.S.C. § 2052(a)(7), 15 U.S.C. § 2052(a)(13)).
Consequently, everyone who touches a product once it is manufactured in the US or arrives in the US, other than someone doing so for transportation purposes only, is liable for a recall of the product. That liability extends to failing to report a defective product.
3. A reporting requirement is triggered when:
There is a duty to report a defective product by anyone in the chain of distribution when:
- a product fails to comply with a consumer product safety rule or a voluntary consumer product safety standard upon which the CPSC has relied, such as the voluntary standards.
- A product fails to comply with the CPSA or another Act, such as the Flammable Fabrics Act.
- A product contains a defect that could create a substantial product hazard.
- A product creates an unreasonable risk of serious injury or death (15 U.S.C. § 1193-1204, 15 U.S.C. § 2064(b)).
This creates a massive unknown black hole for the outdoor industry. The OR industry creates dozens of products may have a warranty issue, but do not violate any statute and do not create a substantial hazard or create a risk of injury or death to the user.
Examples of these are Avalanche Probes or Avalanche Beacons, and other rescue equipment. No matter what goes wrong with a probe or beacon, it will not cause injury or death to the consumer. The defective probe will not kill or injury anyone unless the searcher just stabs someone. Consequently, this creates a real issue for many.
However, the law says injury to the consumer. If there is no injury, the product may not work, but it is not the cause of the injury and thus not subject to a recall.
The CPSC takes a different view.
Your question has been forwarded to me for a response. We may find a product to be defective if it does not function as intended, and the problem can lead to a hazard. The hazard does not necessarily need to stem from direct contact with the product itself. If its failure to operate as expected can expose anyone to a hazard, then we may potentially find that product to be defective and creating a risk of injury. To use your Avalanche Beacon example, since its purpose is a life safety device intended to assist in the location of someone buried in an avalanche, if it does not function as designed, it could be determined to contain a defect which creates a risk of injury. Such an analysis is contingent on the facts of each particular case.
Blake G. Rose
Director
Defect Investigations Division
Office of Compliance and Field Operations U.S. Consumer Product Safety Commission
I think this can require a lot of interpretations and leaves a real gap for because the explicit language of the law is different. The above statement is the CPSC interpretation of that language. You will need to look at what the problem is and will it lead to injury to a non-user. In many cases, it won’t, it is a warranty issue.
This issue is: How much are you will to risk and push the issue? If not, then recall your product no matter what the issue.
4. Voluntary Standards
If a product fails to meet standards that are voluntary such as those created by the ASTM, ANSI or such other agency or trade association, then the CPSC has interpreted their regulations to say that product is defective and must be recalled.
At the same time, a product can meet the voluntary standard such as those of the American National Standards Institute (ANSI) (16 C.F.R. § 1115.12(g)) and still need to be recalled because it is defective in a way that is not covered by the voluntary standard.
5. When do you have to report?
You must report any product that has a “a fault, flaw, or irregularity that causes weakness, failure, or inadequacy in form or function.” (16 C.F.R. § 1115.4) If the product has a defect, then the issue is whether the defect creates a substantial product hazard.
A “substantial product hazard” is:
- A failure to comply with an applicable consumer product safety rule, which failure creates a substantial risk of injury to the public,
- A product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public (16 C.F.R. § 1115.2(a)).
A “substantial product hazard” exists when a defect creates a “substantial risk of injury.” The focus is on the risk of injury, not on actual injury reports or the severity of injuries (16 C.F.R. § 1115.12(g). Although in my experience, the severity and actual injuries having already occurred ends any discussion by the CPSC.
6. Unreasonable Risk of Serious Injury or Death
“Serious injuries” are defined by the CPSC as “injuries necessitating hospitalization, which require actual medical or surgical treatment, fractures, lacerations requiring sutures, concussions, injuries to the eye, ear, or internal organs requiring medical treatment, and injuries necessitating absence from school or work of more than one day.’ (16 C. F. R. § 1115.6)
The requirements are not cumulative. Meaning a consumer can suffer serious injury if they receive sutures but don’t go to the hospital or miss work. The threshold has been met by just one issue.
The factors that are used to decide whether a risk of serious injury is “unreasonable” are the utility of the product, the level of exposure to consumers, the nature and severity of the hazard, whether the product is state of the art, the availability of alternative designs, and the feasibility of eliminating the risk without compromising utility (16 C. F. R. § 1115.6(b)).
I also think this clause affects the definition of defect. There is no unreasonable risk of series injury or death to any victim.
7. Burden is on the Chain of Distribution to watch.
Regardless of which category the report will come under, you must pay attention to product testing results as well as watch for warranty claims, consumer complaints, product liability lawsuits and other quality related complaints for any indication that reportable defects or reportable injuries exist.
8. When to Report
If a product contains a defect that has the actual or potential risk to cause injury, the CPSC will initiate a recall, generally with the manufacturer’s cooperation and input. However, the CPSC can imitate a recall even if the manufacturer opposes the recall.
9. Corrective Action Plan (CAP)
A CAP is a document that describes the remedial action that the company is voluntarily undertaking with the CPSC’s approval to protect the public from an allegedly defective product (16 C.F.R. 1115.20(a)). (The threat of a fine does not remove the concept of voluntary from the CPSC nomenclature.)
The CPSC can initiate an enforcement action if it cannot reach agreement with the company on the corrective action plan, or if it becomes aware of additional facts that were not disclosed by the company.
10. Components of the Corrective Action Plan
The CPSC can create the CAP it believes is necessary to solve the problem. Consequently, no CAP is the same as a prior one, in theory.
The corrective action plan may include:
- A description of the alleged hazard, including the alleged defect and any associated potential injuries
-
Details pertaining to the vehicle and method of public notification such as a
- Letter
- Press Release
- Advertising
- Letter
- Who a notice will be sent to
- The model number and description of the product
- Instructions for safe handling or use of the product pending the corrective action
- An explanation of the cause of the hazard if known
-
The corrective action being taken to eliminate the hazard such as
- Repair
- Replacement
- Refund
- Repair
- Whether the products are to be returned a plan for their disposition
- Steps taken to prevent reoccurrence of the hazard in the future
- Action taken to correct products in the distribution chain.
- In addition to this information, a corrective action plan
- Must be signed by company representatives
- Must acknowledge and agree that the CPSC has the power to monitor the action
- That the CPSC publicize the terms of the corrective action plan
- May contain a statement that the submission of the corrective action plan does not constitute an admission by the company that either reportable information or a substantial product hazard exists.
Some factors that are considered when the CPSC is determining whether to accept the corrective action plan are.
- The promptness of the company’s reporting
- Any remedial actions taken
- And the likelihood that the company will fully comply with the plan based upon any prior corrective actions.
Consequently, maintaining a good relationship with the CPSC pays off. This is not an agency that aggressiveness works in achieving your goals. Employees of the CPSC regularly deal with the largest companies in the world, and threats are a joke.
In that same vein, I work hard to maintain my reputation with the CPSC and want to conform to the three steps identified above.
The CPSC can approve the plan, reject the plan and issue a complaint against the company which begins an administrative or judicial action, or take other action to ensure the plan is adequate, such as suggesting revisions to the plan (16 C.F.R. 1115.20(a)(2)).
11. Recall Notice
The CPSC views a direct recall notice, or one that is sent directly to specifically identified consumers, as the most effective form of a recall notice. In any recall, at least two of the following forms of notice must be used:
- Letters, web site postings, e-mail, text message
- Computer, radio or television transmission
- Video news release, press release, recall alert or web stream.
- Newspaper, magazine, catalog or other publication
- Advertisement, newsletter or service bulletin (16 C.F.R. 1115.26).
In most cases, the CPSC will require a combination of notices and requires the manufacturer to monitor and report the effectiveness of the notices.
If a recall notice is posted on a web site, a link to the relevant information must be placed prominently on the home page (16 C.F.R. 1115.26). Because this is the first thing, most consumers will respond to in the eyes of the CPSC, the larger the notice and more prominent the notice the better.
The notice on the home page, and link to information on how to respond to the recall must be left on the page until the CPSC has released the manufacturer from the recall.
12. Penalties
Penalties that can be levied by the CPSC increased in 2008. A fine of up to $100,000 for a single violation of the CPSA, and up to a maximum of $15 million for a series of violations can be levied by the CPSC (15 U.S.C. § 2069).
This increased in the amount and ability to fine, has changed the approach of many companies in dealing with the CPSC. Before the fine increase, the fines were nominal and a lot of companies would ignore the CPSC and hope they would not be discovered. Now, the fines are so substantial that you ignore the CPSC at your own peril.
13. Failure to report
A failure to report a defective product or having the report created from the anonymous webpage or 800 number is the easiest way to incur the wrath of the CPSC. A failure to timely respond to the CPSC, and the completeness of the response increases the severity of any penalty for failure to report. The CPSC will also look at:
- Whether a company had a reasonable safety and compliance program, in effect, at the time of the violation, including a system of collecting and analyzing information relating to safety issues such as incident reports and warranty claims;
- Whether a company has a history of noncompliance with the CPSC that is deserving of a higher penalty for repeated noncompliance.
- Whether a company has benefited economically from a delay in complying with the requirements;
- Whether a company has failed to respond to the CPSC in a timely and complete fashion in response to requests for information or for remedial action (16C.F.R.1l19).
CPSC also examines the severity of the risk of injury, the occurrence or absence of injury, and the number of defective products or the amount of substance distributed.
The CPSC must also consider the nature, circumstances, extent and gravity of the violation, including the nature of the product defect or the substance; the appropriateness of the penalty in relation to the size of the business or of the person charged, including how to mitigate undue adverse economic impacts on small businesses; and other factors as appropriate.
14. Preparing for a Recall
The best way to prepare for a recall is to read. If at any time you believe you may need to recall a product you should do two things.
- Assign someone to be the sole person responsible for dealing with the CPSC and with the recall. This person is going to spend 90% of their time the first two to three weeks dealing with the recall. After the CPSC approves the CAP then the responsible person only needs to track the responses to the recall and report every month.
-
Read the following:
- http://www.cpsc.gov/recallguidance.
- If you believe you can benefit from the Fast Track Program: http://www.cpsc.gov/fasttrack
-
Download and read the CPSC Recall Handbook:
- In English: https://www.cpsc.gov/s3fs-public/8002.pdf
- In Spanish: https://www.cpsc.gov/s3fs-public/8002.pdf
- In English: https://www.cpsc.gov/s3fs-public/8002.pdf
- http://www.cpsc.gov/recallguidance.
- If you understand and are prepared the CPSC recall is not the nightmare that it has been labeled. It is not an easy and smooth process either. It will also cost the company thousands of dollars in time, fees and expenses apart from the cost of the actual recall.
-
And you are working with Federal Bureaucrats. A couple of hints:
- Make sure you understand their terminology.
- Get clear deadlines and dates
-
Follow up with every report or response you file to make sure it was.
- Received
- Correct or met the requirements/needs of the CPSC.
- Received
- Do not be afraid to ask for clarification, help or knowledge until you fully understand what the issue is.
- Do not be afraid to point out issues that are not clear, confusing, or you don’t understand or agree with.
- Ask your compliance officer after the CAP has been filed and approved what the CPSC expected goal is in response to your recall. That will determine when you can end the recall.
- Make sure you understand their terminology.
Once I was asking when we no longer had to file monthly reports. The contact I was working with at the CPSC, pulled up the reports and said, wow, you are done. After the reports start rolling in on time and correct, they can get lost in the system or ignored. You will have to stay on top of the reports and the CPSC to make sure they help you succeed and get off the program.
If you don’t ask you will be filing reports for years.
There is no way to plan for a recall. It is much better to plan to make sure you don’t have a recall. Quality control is the most important department in making sure a recall does not happen. If it does, you can quickly get up to speed. Working with your attorney and PR agency (yes, the CPSC wants you to have a PR firm or person) you can get through the first couple of weeks and then concentrate on running the business.
15. Starting a recall can take a month before the CPSC responds, what do I do.
If you want to get the word out because there is a real issue and people’s lives or well-being is at stake, the CPSC recall process is slow. After filing the initial notice, the CPSC will get back to you with questions and requirements for a plan in a couple of days. You will have twenty days to respond. The CPSC can take another week or two to finalize the recall information, notices and press releases.
That can be too long in our industry.
Nothing in the regulations says you cannot notify people of the recall on your own. The CPSC will tell you that you may have to do it again, if they do not like the way, you did it, the press release or notices you used, etc. You will do it again because the CPSC will want it done again. However, that is a small price to pay if you save one of your user’s life or limb.
Get the world to your retailers, distribution change, major media outlets and social media immediately. Whatever users you have contact information for contact them immediately. Do the same for user groups, associations and any professionals using your equipment.
Include what you do in any communication with the CPSC. You can upload these documents when you file the report, or as you send them out. The CPSC is going to respond that you did it wrong. However, I have to believe that if they understand your issues, the risk, and your efforts, they must believe and appreciate what you did, in an attempt to save lives.
The CPSC is a federal regulatory body, and no matter the urgency is going to respond, their way and only their way. You must follow their rules. However, nothing prevents you from jumping the gun and notifying people any way you can to save people.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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