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ORTOVOX Recalls Avalanche Transceivers Due to Loss of Emergency Communications Capability

Hazard: 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

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

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

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

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.

What do you think? Leave a comment.

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What the term “strictly construed” actually means when used to describe how a release will be viewed by the court.

The decision involves several legal issues, the one that concerns us is the issue of a release for a product. In Kansas, releases are strictly construed. In this case that meant that the language of the release did not meet the requirements of state law for a release. However, the court stretched incredibly far to come to that conclusion.

Fee v. Steve Snyder Enterprises, Inc.; Et. Al., 1986 U.S. Dist. LEXIS 28158

State: Kansas, United States District Court for the District of Kansas

Plaintiff: Patricia Fee

Defendant: Steve Snyder Enterprises, Inc.; Russell Young; SSE, Incorporated; Greene County Sport Parachute Center of Wellsville, Kansas, Inc.; and John Doe Corporation

Plaintiff Claims: Wrongful death and survival claims based on negligence, product liability and breach of warranty

Defendant Defenses: Statute of Limitations ran,

Holding: for the plaintiff

Year: 1986

Summary

The lawsuit was brought over the failure of an automatic opener, which did not during a sky dive. The widow sued the manufacture of the device and the sky-diving center who sold the device to the deceased. The deceased signed a release and indemnity agreement, two separate documents when purchasing the automatic opener.

In Kansas, releases are allowed but strictly construed. Here strict construction is used, improperly, to interpret the release in an extremely narrow way to allow the lawsuit to proceed.

Facts

The deceased died when he was sky diving, and his automatic opening device failed to open. The automatic opening device was manufactured by the defendant.

The plaintiff spent eight years attempting to serve the defendant, starting in 1977 and finally serving the defendant in 1985. This lead to a discussion about when the lawsuit actually started, which takes the first half of the decision. Because the defendant had avoided service of process, because he knew about it and made attempts not to get sued, the date of the lawsuit started was the date he was served. However, due to the defendant’s actions, the statute of limitations did not run.

The widow purchased the automatic opener for the deceased, although the dates in the decision must be incorrect. The decision states the device was purchased a year after the deceased died. The device failed the first time it was used by the decedent.

The deceased signed a release for the parachute center. The defendant manufacturer raised the release as a defense to the claims of the plaintiff against the manufacture as well as those claims against the dive center.

The release was on one side of the paper and on the reverse was an assumption of risk language. The deceased also signed a separate indemnify agreement. The decedent signed both agreements.

This decision is that of the Federal District Court in Kansas.

Analysis: making sense of the law based on these facts.

The court first looked at release law in Kansas. If not against public policy, then Kansas recognizes exculpatory agreements, releases. However, like many state’s releases, the courts in Kansas use the language that releases “are not favored by the law and are strictly construed against the party relying on them.” Strictly construed does not require the specific term negligence but must clearly appear to express the intent to release from liability the defendant.

It is not necessary; however, that the agreement contained specific or express language covering in so many words the party’s negligence, if the intention to exculpate the party from liability clearly ap-pears from the contract, the surrounding circumstances and the purposes and objects of the parties.

The court in reading the release found it did not stop the plaintiff’s claims.

The court first in looking at the language found the language covered use of the product but did not cover liability for “sale” of the product.

First, a review of the agreement itself shows that, although it specifically releases the Parachute Center from liability for injuries or death arising out of the “ownership, operation, use, maintenance or control” of many devices,” the agreement fails to mention any release of liability revolving around the sale of any product to the parachuter.

The court admitted the deceased understood that parachuting was dangerous, that was not enough. By making the determination that the product was defective when sold, the court found the release would not stand because you cannot release liability for selling a defective product.

Strictly construing the agreement; however, we do not believe that this should be interpreted to exempt the Parachute Center from a failure to use due care in furnishing safe equipment, or should allow it to sell a product in a defective condition unreasonably dangerous to the parachuter. To do so would impermissibly extend the terms of the agreement to situations not plainly within its language.

The court then determined the release would also not work to stop the plaintiff’s claims for breach of either express or implied warranty. The court found attempting to release the defendant parachute center from liability was unconscionable. Under Kansas law, a release could be used to stop warranty claims, unless that was found to be unconscionable.

We, therefore, hold that plaintiff’s action is not barred by the release, covenant not to sue and indemnity clause signed by the plaintiff’s decedent. Summary judgment in favor of the defendants Parachute Center and Russell Young is therefore, inappropriate.

The indemnification agreement seemed to be ignored in reaching this determination by the court.

So Now What?

Strict construction is a term that gives leeway to a court to review the language of the release to make sure it conforms to the language required under state law. However, that term was created and applied to release’s decades ago and rarely used now except in rare situations like this. When the judge wants the defendant to pay.

Probably the term was created when courts were first asked to apply releases to a plaintiff’s claims and wanted a way to soften the blow. Now days, in most states it is quoted in the decision at the beginning and never heard of again. Eventually if the courts review enough releases, the term is not even quoted.

Few states allow a release to be used to stop product liability claims. However, several states do and several states allow assumption of risk to stop product liability claims. A well-written release that incorporates assumption of risk language is still effective in many product liability cases.

Here, however, the court reached as far as it could to find that the release was barred from stopping the claims. Part of that desire to allow the suit to proceed was probably because of the actions of the manufacturer who spend eight years avoiding service of the lawsuit.

The rest, however, was simply a stretch to allow the lawsuit to proceed.

What do you think? Leave a comment.

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Fee v. Steve Snyder Enterprises, Inc.; et. Al., 1986 U.S. Dist. LEXIS 28158

Fee v. Steve Snyder Enterprises, Inc.; et. Al., 1986 U.S. Dist. LEXIS 28158

Patricia Fee, Plaintiff, v. Steve Snyder Enterprises, Inc.; Russell Young; SSE, Incorporated; Greene County Sport Parachute Center of Wellsville, Kansas, Inc.; and John Doe Corporation, Defendants

CIVIL ACTION No. 84-2323

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

1986 U.S. Dist. LEXIS 28158

March 14, 1986

CASE SUMMARY:

CORE TERMS: parachute, sport, summary judgment, decedent, personally, covenant, implied warranties, statute of limitations, service of process, mail service, notice, mail, parachuting, personal injury, personal service, parachuter, consumer, assigns, wrongful death, strict liability, territorial limits, unconscionable, consequential, predecessor, disclaimer, diversity, automatic, warranty, opening, saving

COUNSEL: [*1] John E. McKay, LAW OFFICES OF BENSON & McKAY, 911 Main Street, Suite 1430, Kansas City, Missouri 64105, (816) 842-7604; Mark R. Singer/Micheline Z. Burger ROMAIN, BURGER & SINGER, CHTD., The College View Building, 4500 College Blvd., Suite 103, Overland Park, Kansas 66221, (913)649-5224; Paul v. Herbers, James E. Cooling, Cooling, Herbers & Sears, P.C., P.O. Box 26770, Kansas City, MO 64196, (816) 474-0770; Russell C. Leffel, 7315 Frontage Road, Suite 111, Shawnee Mission, KS 66204, 913-362-9727, Neal E. Millert, Larry J. Tyrl, James, Millert, Houdek, Tyrl & Sommers, 804 Bryant Building, 1102 Grand, Kansas City, Missouri 64106, Randolph G. Austin, Speer, Austin, Holliday, & Ruddick, 261 N. Cherry, P.O. Box 1000, Olathe, Kansas 66061.

OPINION BY: O’CONNOR

OPINION

MEMORANDUM AND ORDER

EARL E. O’CONNOR, CHIEF JUDGE.

This matter is before the court on defendants’ motions for summary judgment and plaintiff’s motion for costs. This is a diversity action for wrongful death and survivorship based on claims of negligence, strict liability and breach of express and implied warranties.

I. Motion for Summary Judgment by Defendant SSE, Incorporated.

Defendant SSE, Incorporated, moves for [*2] summary judgment on the ground that plaintiff’s action is barred by the two-year statute of limitations found at K.S.A. 60-513(a). For the following reasons, defendant’s motion must be denied.

[HN1] Summary judgment is appropriate when the matters considered by the court disclose that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Federal Rule of Civil Procedure 56(c). The court must look at the record in the light most favorable to the party opposing the motion. Prochaska v. Marcoux, 632 F.2d 848, 850 (10th Cir. 1980), cert. denied, 451 U.S. 984 (1981). Before summary judgment may be granted, the moving party must establish that it is entitled to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985).

The uncontroverted facts relevant to this motion are as follows:

1. The plaintiff’s decedent died while skydiving on December 11, 1982, when his parachute failed to open. Decedent’s parachute was equipped with an automatic opening device, which was manufactured by the defendant SSE, Incorporated.

2. Plaintiff filed this lawsuit on August 13, [*3] 1984, consisting of wrongful death and survival claims based on negligence, product liability and breach of warranty. Plaintiff named Steve Snyder Enterprises, Inc., as a defendant, claiming that it was a Pennsylvania corporation that designed, manufactured and sold the defective device.

3. On August 14, 1984, the complaint was mailed to Steve Snyder Enterprises, Inc., at a New Jersey address.

4. Steve Snyder Enterprises, Inc., had changed its name to “SSE, Incorporated,” in November of 1977. Its corporate headquarters, however, remained at the same location.

5. SSE, Incorporated, received the complaint at the New Jersey address.

6. ln a telephone conversation with plaintiff’s counsel, the attorney for SSE, Incorporated, advised plaintiff’s counsel that neither SSE nor its predecessor corporation, Steve Snyder Enterprises, Inc., would accept service by mail.

7. On November 1, 1984, counsel for SSE, Incorporated, rated, wrote to plaintiff’s counsel, again informing him that SSE intended not to acknowledge the mail service.

8. On November 14, 1984, the complaint was again mailed to Steve Snyder Enterprises, Inc. SEE, Incorporated, received the complaint, but refused to sign or [*4] return an acknowledgement.

9. On December 7, 1984, plaintiff filed her first amended complaint, adding SSE, Incorporated, as a defendant.

10. From January 1985 to August 28, 1985, plaintiff’s process servers made thirty-three attempts to personally serve SSE, Incorporated.

11. On August 29, 1985, plaintiff successfully served Steve Snyder, the registered agent and president of SSE, Incorporated.

Defendant SSE, Incorporated, argues that summary judgment is appropriate on all of plaintiff’s claims because they are barred by the two-year statute of limitations for wrongful death actions set forth at K.S.A. 60-513(a)(5). The court notes, however, that not all of plaintiff’s claims are for wrongful death — Counts VI through VIII are survival actions based on negligence, strict liability and breach of express and implied warranties. Nevertheless, a similar two-year statute of limitations (see K.S.A. 60-13(a)(4)) applies to the negligence, strict liability and breach of warranty claims. See Grey v. Bradford-White Corp., 581 F.Supp. 725 (D. Kan. 1984). The court will therefore treat defendant’s motion as seeking summary judgment on all of plaintiff’s claims and not merely plaintiff’s [*5] wrongful death claims.

To decide whether plaintiff’s claims are barred by the two-year statute of limitations, we must first determine when plaintiff’s suit was commenced. [HN2] In a diversity action, the court must apply the state law prescribing when an action commences for statute of limitations purposes rather than Rule 3 of the Federal Rules of Civil Procedure. Walker v. Armco Steel Corp., 446 U.S. 740 (1980); Ragan v. Merchants Transfer & Warehouse Company, 337 U.S. 530 (1949). [HN3] Kansas law provides that an action is commenced at the time a petition is filed if service of process is obtained within ninety days. See K.S.A. 60-203(a)(1). If service is not obtained during the 90-day period, then the action is commenced at the time of service. Id.

Defendant argues that plaintiff’s action did not com- mence until August 29, 1985, when plaintiff personally served the agent of SSE, Incorporated, Steve Snyder. Accordingly, since plaintiff’s cause of action arose on December 11, 1982, her claims are barred by the two-year statute of limitations. We are not persuaded by defendant’s argument.

We conclude that plaintiff’s action was timely commenced under the saving provisions [*6] of K.S.A. 60-203(b). That section provides:

[HN4] If service of process or first publication purports to have been made within the time specified by subsection (a)(1) but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced by the original filing of the petition if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.

Id.

Applying this statute to the facts in this case, we find that plaintiff purported to serve process by mail on August 14, 1984, only one day after the suit was filed. Service by mail is proper under a recent amendment to the Kansas Code of Civil Procedure. 1
See K.S.A. 60-314 (Supp. 1985). We find, however, that plaintiff’s service was invalid due to the defendant’s failure to complete and return the enclosed notice. Under the saving provision of section 60-203(b), we may nevertheless deem plaintiff’s action to have been commenced on the date plaintiff’s complaint was filed, [*7] so long as plaintiff makes personal service on the defendant within ninety days of this order.

1 We must look to the Kansas law prescribing the method of service. This is a diversity action in which plaintiff asserts jurisdiction over the defendant pursuant to the Kansas long-arm statute, K.S.A. 60-308. Fed. R. Civ. P. 4(f) provides that “process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state.” There is no applicable federal statute that would allow service of process outside the state in this case. Thus, in order to obtain service beyond the territorial limits of the court, there must be authorization in “these rules.” Rule 4(e) provides for service of process on defendants who are not inhabitants of or found within the state. In pertinent part it states:

Whenever a statute or rule of court of the state in which the district is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, . . . service may . . . be made under the circumstances and in the manner prescribed in the [state] statute or rule.

Clearly, service by mail is a “manner” of service provided by the Kansas statute in this situation. See K.S.A. 60-314 (Supp. 1985).

[*8] Defendant also argues that because plaintiff’s mail service was directed to Steve Snyder Enterprises, Inc., rather than to SSE, Incorporated, it was totally ineffective. We find defendant’s argument meritless for two reasons. First, under the saving provision discussed above, plaintiff’s mistake in naming defendant’s predecessor corporation qualifies as a defect in the service that may be remedied by plaintiff reserving the defendant under its proper name within ninety days of this order. Second, [HN5] both the federal rules (Rule 15(c)) and Kansas law (K.S.A. 60-215(c)) allow for relation back of an amendment changing a party. Under these provisions, [HN6] a change in party relates back so long as the claim asserted arose out of the events set forth in the original complaint and

within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Federal Rule [*9] of Civil Procedure 15(c); K.S.A. 60-215(c).

In this case, an amendment changing defendant’s name from Steve Snyder Enterprises, Inc., to SSE, Incorporated, would clearly relate back. First, the claims asserted would be identical to those originally filed. Second, SSE, Incorporated, admits it had notice of this action within the statutory period. Counsel for SSE, Incorporated, informed plaintiff’s counsel in August and November of 1984 that SSE had received the mail service but chose not to acknowledge it. Third, SSE, Incorporated, knew that but for plaintiff’s confusion over the name of its predecessor corporation, the action would have been brought against it.

We therefore hold that plaintiff shall have ninety (90) days from the date of this order to personally serve the defendant SSE, Incorporated. Upon such service, plaintiff’s action will be deemed to have commenced on August 13, 1984, when the case was filed. Plaintiff’s claims will therefore be timely. If, however, plaintiff fails to serve SSE, Incorporated, within the 90-day time period, plaintiff’s action against this defendant will be deemed time-barred. Defendant’s motion for summary judgment will therefore be held in abeyance [*10] for ninety days from the date of this order to allow plaintiff to properly serve the defendant.

II. Plaintiff’s Motion for Costs.

Plaintiff moves for payment of the costs incurred in plaintiff’s previous attempts to personally serve defendant. [HN7] Costs are available pursuant to both Federal Rule of Civil Procedure 4(c)(2)(D) and K.S.A. 60-314:

Unless good cause is shown for not doing so the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons.

Defendant in this case has shown no reason why costs should not be assessed against it. Defendant deliberately refused to acknowledge mail service and even went so far as to inform plaintiff that it was electing to assert its “right to service of process in the customary manner and not by mail.” Defendant’s Exhibit 4. Not only did defendant refuse mail service, but it also made every attempt to thwart personal service. Plaintiff was thus forced to attempt service at least thirty-three times against defendant. We therefore hold that plaintiff is entitled to recover costs in [*11] the amount of $1,628.47 as requested in her motion. Furthermore, plaintiff will be entitled to recover costs incurred in serving the defendant again, as discussed in part I above, upon plaintiff’s submission of proof of expenses.

III. Motion for Summary Judgment by Defendants Russell Young and Greene County Sport Parachute Center.

Defendant Russell Young moves for summary judgment on the ground that plaintiff’s decedent signed a release and covenant not to sue in favor of Greene County Sport Parachute Center of Wellsville, Kansas, Inc. (hereinafter the Parachute Center), and its employees and agents. The Parachute Center joins in said motion.

The material uncontroverted facts are as follows:

1. On May 8, 1982, plaintiff’s decedent signed a “Release and Covenant Not To Sue,” which read in pertinent part:

[I] do hereby fully and forever release and discharge the said Greene County Sport Parachute Center of Wellsville, Kansas, Inc. and their employees, servants, stockholders, agents, successors, assigns, and all other persons whomsoever directly or indirectly liable, from any and all other claims and demands, actions and cause of action, damages, costs, loss of services, [*12] expenses and any and all other claims of damages whatsoever, resulting from PERSONAL INJURIES, DEATH OR PROPERTY DAMAGES SUSTAINED BY ME, arising out of AIRCRAFT FLIGHTS, PARACHUTE JUMPS, or any other means of lift, ascent or descent from an aircraft of any nature, or arising out of the ownership, operation, use, maintenance or control of any vehicle, whether motor vehicle, aircraft, or otherwise, or any device, or mooring, while on the ground or in flight, and meaning and intending to include herein all such PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE resulting from or in any way connected with or arising out of instructions, training, and ground or air operations incidental thereto.

This release and covenant not to sue is made and entered in consideration of the permission extended to me by Greene County Sport Parachute Center of Wellsville, Kansas, Inc. to participate in a course of parachuting instructions, parachuting training flying activities, ground or air operations incidental to parachuting and flying.

I further acknowledge that I will not rely on any oral or written representation of Greene County Sports Parachute Center of Wellsville, Kansas, Inc. or any agent thereof. [*13] I fully understand that there are dangerous risks in the sport of parachute jumping, and I assume said risks. . . .

I HAVE READ AND FULLY UNDERSTAND that Release and Covenant Not to Sue and sign the same as my own free act.

2. Plaintiff’s decedent also signed an “Indemnity Clause,” which read:

I acknowledge that Greene County Sport Parachute Center of Wellsville, Ks., Inc., is not an insurer of me. I do, for myself, my heirs, executors, administrators and assigns, hereby expressly stipulate, covenant and agree to indemnify and hold forever harmless the said Greene County Sport Parachute Center of Wellsville, Ks., Inc., and its employees, servants, stockholders, agents, successors, and assigns, and all other persons whomsoever against and from any and all actions, causes of action, claims and demands for damages, judgments, executions, costs, loss of services, expenses, compensation, including reimbursement of all legal costs and reasonable counsel fees incurred or paid by the said indemnified parties or any of them, for the investigation, prosecution or defense of any such action, cause of action or claim or demand for damages, and any and all other claims for damages, whatsoever, [*14] which may hereafter arise, or be instituted or recovered against said Greene County Sport Parachute Center of Wellsville, Ks., Inc., and its servants, employees, stockholders, agents, successors, assigns or any other person or persons whomsoever, by me or by any other person whomsoever, whether for the purpose of making or enforcing a claim for damages, on account of PERSONAL INJURIES, DEATH, OR PROPERTY DAMAGE sustained by me, or whether for the purpose of enforcing a claim for damages of any nature by any person whomsoever, on account of, or in any way resulting therefrom.

3. The decedent signed both the clause and release and certified that he had read them. His signature was witnessed by defendant Russell Young, President of the Parachute Center.

4. On the reverse side of the release, the decedent also signed and certified the following statements:

(9) I understand there are potential dangers and risks involved in this sport and acknowledge that the training I have received is intended to minimize such but is no guarantee or representation that there are none.

(10) I understand that parachuting is a potentially dangerous sport and that the proper functions of these parachutes [*15] or any parachute cannot be and is not guaranteed.

5. The decedent ordered and promised to pay for an automatic parachute opening device from the defendants Parachute Center and Russell Young. Young delivered the device to the decedent in December 1982.

6. The decedent used the device for the first time while skydiving on December 11, 1982. His parachute failed to open, he fell to the ground and was fatally injured.

7. The decedent’s widow paid the Parachute Center $254.60 for the device on January 27, 1983.

[HN8] Kansas courts have long recognized the validity of exculpatory agreements relieving a party from liability unless it would be against the settled public policy to do so. See, e.g., Belger Cartage Service, Inc. v. Holland Construction Co., 224 Kan. 320, 329, 582 P.2d 1111, 1118 (1978); Hunter v. American Rentals, 189 Kan. 615, 617, 371 P.2d 131, 133 (1962). Exculpatory contracts, however, “are not favored by the law and are strictly construed against the party relying on them.” Cason v. Geis Irrigation Co., 211 Kan. 406, 411, 507 P.2d 295, 299 (1973). Accord. Belger, 224 Kan. at 329, 582 P.2d at 1119. The terms of the agreement are not to be extended to [*16] situations not plainly within the language employed. Baker v. City of Topeka, 231 Kan. 328, 334, 644 P.2d 441, 446 (1982); Missouri Pacific Railroad Co. v. City of Topeka, 213 Kan. 658, 664, 518 P.2d 372, 377 (1973). It is not necessary, however, that the agreement contain specific or express language covering in so many words the party’s negligence, if the intention to exculpate the party from liability clearly appears from the contract, the surrounding circumstances and the purposes and objects of the parties. Bartlett v. Davis Corp., 219 Kan. 148, 159, 547 P.2d 800, 806 (1976).

After reviewing the language of the contract and the totality of the circumstances to determine the intent of these parties, we conclude that the release and indemnity clause do not preclude plaintiff’s action. First, a review of the agreement itself shows that, although it specifically releases the Parachute Center from liability for injuries or death arising out of the “ownership, operation, use, maintenance or control” of many device,” the agreement fails to mention any release of liability revolving around the sale of any product to the parachuter. Granted, there is a paragraph in [*17] which the parachuter states that he understands that parachuting is a potentially dangerous sport and that the proper function of the parachute cannot be guaranteed. Strictly construing the agreement, however, we do not believe that this should be interpreted to exempt the Parachute Center from a failure to use due care in furnishing safe equipment, or should allow it to sell a product in a defective condition unreasonably dangerous to the parachuter. To do so would impermissibly extend the terms of the agreement to situations not plainly within its language.

Other courts have held that similar releases exempt parachute centers and trainers only from injuries that ordinarily occur without any fault of the defendant. See Diedrich v. Wright, 550 F.Supp. 805 (N.D. Ill. 1982); Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 65, 400 N.E.2d 306 (Ct.App. 1979). We agree with these courts that the language alerting the parachuter to the dangers in parachute jumping is used to drive home to the individual that he must enter into this sport with an apprehension of the risks inherent in the nature of the sport. See 550 F.Supp. at 808; 49 N.Y.2d at
, 424 N.Y.S.2d at 369, 400 [*18] N.E.2d at It does not, however, follow that he must accept enhanced exposure to injury or death based on the carelessness of the defendants in selling him a defective product or failing to warn him about its use.

Furthermore, we hold that the release was ineffective under Kansas law to limit liability for a breach of either an express or implied warranty. [HN9] With respect to disclaimer of express warranties, K.S.A. 84-2-719(3) provides:

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

In this case, the automatic opening device qualifies as a consumer good under K.S.A. 84-9-109. Under section 84-2-719(3), the defendants’ attempt to exclude consequential damages for personal injury was unconscionable and therefore unenforceable.

Furthermore, with respect to disclaimer of implied warranties of merchantability, [HN10] the Kansas Consumer Protection Act flatly prohibits in consumer cases the use of any limitation on remedies or liability for implied [*19] warranties, and declares that any such disclaimers are void. K.S.A. 50-639(a) and (e). See also id. at 84-2-719 (Kansas Comment).

We therefore hold that plaintiff’s action is not barred by the release, covenant not to sue and indemnity clause signed by plaintiff’s decedent. Summary judgment in favor of the defendants Parachute Center and Russell Young is therefore inappropriate.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment by Russell Young and Greene County Sport Parachute Center of Wellsville, Kansas, Inc., is denied.

IT IS FURTHER ORDERED that defendant’s motion for summary judgment by SSE, Incorporated, shall be held in abeyance until plaintiff obtains personal service upon SSE, Incorporated. Plaintiff shall have ninety (90) days from the date of this order to personally serve SSE, Incorporated. If plaintiff fails to so serve the defendant, defendant’s motion for summary judgment will be granted.

IT IS FURTHER ORDERED that plaintiff’s motion for costs to personally serve the defendant SSE, Incorporated, in the amount of $1,628.47, is granted.

Dated this 14th May of March, 1986, at Kansas City, Kansas.


RECCO® EXPANDS ITS REACH BY EQUIPPING NEW SUMMER PRODUCTS WITH RECCO® TECHNOLOGY

https://meltwater-apps-production.s3.amazonaws.com/uploads/images/582c8b3dd0f54ecaefee09d9/blobid5_1528876700024.jpg

RECCO® EXPANDS ITS REACH BY EQUIPPING NEW SUMMER PRODUCTS WITH RECCO® TECHNOLOGY

The global RECCO® network is growing as top outdoor brands unveil new summer products featuring RECCO® technology at the OutDoor Show in Friedrichshafen on June 17-20.

Stockholm, Sweden–June 16, 2018–The worldwide RECCO® network is expanding as more and more brands announce new products for summer 2019 that adopt RECCO® rescue technology. Leading outdoor brands will be unveiling their latest outdoor equipment featuring RECCO® reflectors at the midsummer OutDoor Show in Friedrichshafen, Germany on June 17-20.

Based on technology to aid in avalanche rescue efforts, RECCO® is actively expanding its offering to summer-oriented activities such as mountain biking, hiking, trail running, paragliding, and alpinism.

The RECCO® Helicopter Detector enables rescuers to search and scan large areas from the air to locate missing persons equipped with RECCO® reflectors. The RECCO® Helicopter Detector was announced in 2015 and has been undergoing extensive development and implementation at heli bases in Switzerland, Italy, Sweden, and Norway. The technology is now in active service in Zermatt and the Valais region in Switzerland–as well as in the Dolomites and the Aosta Valley regions in Italy–with plans to expand to new regions.

“Each year we spend considerable resources on rescue missions looking for missing people. The RECCO® Helicopter Detector will be useful for those missions. For us, lost hikers, mushroom pickers, etcetera, in lower forest areas are a frequent problem,” -Adriano Favre, President of the rescue organization Soccorso Alpino Valdostano in Aosta Valley

Product highlights to be unveiled featuring RECCO® reflectors include the Haglöfs Grym Evo Jacket, a tough, technical, and environmentally friendly three-layer shell jacket. Mountain bikers will look forward to the POC TECTAL RACE SPIN, a helmet for enduro racing featuring a lightweight design. The Tatonka Kings Peak RECCO is a lightweight touring rucksack designed for backpacking and hiking. Paragliders will rejoice over the Skywalk CULT4 and RANGE X-ALPS2 harnesses, designed for performance and comfort in the air.

“At Haglöfs, we integrate RECCO® reflectors into our finest products that are designed for people who walk longer and climb higher because being exhausted can challenge our focus and increase the risk of being exposed to danger. RECCO® technology simplifies the work for the rescuers in the case of an accident, and at Haglöfs we care about the safety of our customers. When we find a technology that really works, the choice is easy.” -Robert Olsson, Senior Designer at Haglöfs.

In addition to this wide range of upcoming outdoor products, leading brands such as Ortovox, Grivel, Ferrino, Montura, Bergans, Beal, Boeri, Frauenschuh are also integrating RECCO® technology into their upcoming product lines.

Virus-free. www.avast.com

Consumer Product Safety Commission and Recalls: A Primer

1.    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:

  1. For sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise;
  2. 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:

  1. 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.
  2. A product fails to comply with the CPSA or another Act, such as the Flammable Fabrics Act.
  3. A product contains a defect that could create a substantial product hazard.
  4. 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:

  1. A failure to comply with an applicable consumer product safety rule, which failure creates a substantial risk of injury to the public,
  2. 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:

  1. A description of the alleged hazard, including the alleged defect and any associated potential injuries
  2. Details pertaining to the vehicle and method of public notification such as a
    1. Letter
    2. Press Release
    3. Advertising
  3. Who a notice will be sent to
  4. The model number and description of the product
  5. Instructions for safe handling or use of the product pending the corrective action
  6. An explanation of the cause of the hazard if known
  7. The corrective action being taken to eliminate the hazard such as
    1. Repair
    2. Replacement
    3. Refund
  8. Whether the products are to be returned a plan for their disposition
  9. Steps taken to prevent reoccurrence of the hazard in the future
  10. Action taken to correct products in the distribution chain.
  11. In addition to this information, a corrective action plan
  12. Must be signed by company representatives
  13. Must acknowledge and agree that the CPSC has the power to monitor the action
  14. That the CPSC publicize the terms of the corrective action plan
  15. 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:

  1. Letters, web site postings, e-mail, text message
  2. Computer, radio or television transmission
  3. Video news release, press release, recall alert or web stream.
  4. Newspaper, magazine, catalog or other publication
  5. 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.

  1. 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.
  2. Read the following:
    1. http://www.cpsc.gov/recallguidance.
    2. If you believe you can benefit from the Fast Track Program: http://www.cpsc.gov/fasttrack
    3. Download and read the CPSC Recall Handbook:
      1. In English: https://www.cpsc.gov/s3fs-public/8002.pdf
      2. In Spanish: https://www.cpsc.gov/s3fs-public/8002.pdf
  3. 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.
  4. And you are working with Federal Bureaucrats. A couple of hints:
    1. Make sure you understand their terminology.
    2. Get clear deadlines and dates
    3. Follow up with every report or response you file to make sure it was.
      1. Received
      2. Correct or met the requirements/needs of the CPSC.
    4. Do not be afraid to ask for clarification, help or knowledge until you fully understand what the issue is.
    5. Do not be afraid to point out issues that are not clear, confusing, or you don’t understand or agree with.
    6. 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.

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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Group Rossignol Recalls LOOK Pivot Ski Bindings Due to Fall Hazard

The heel piece on the ski binding can come loose, posing a fall hazard to the skier.

Name of Product: LOOK Pivot Ski Bindings

Recall Date: April 16, 2018

Recall Number: 18-139

Remedy: Replace. Consumers should immediately stop using the recalled ski bindings and contact LOOK to arrange for a free inspection and replacement.

Consumer Contact: LOOK toll-free at 888-243-6722 from 9 a.m. to 5 p.m. MT Monday through Friday, email at plefler@rossignol.com or online at https://m.rossignol.com/US and click on “Look Bindings Safety Recall” or http://www.look-bindings.com and click on “Recall” for more information.

Pictures available here: https://www.cpsc.gov/Recalls/2018/Group-Rossignol-Recalls-LOOK-Pivot-Ski-Bindings-Due-to-Fall-Hazard

Units: About 6,900 (In addition, 590 were sold in Canada)

Description: This recall involves 2017-2018 model year LOOK Pivot brand ski bindings. The heel piece can loosen and allow the boot to detach from the ski. The LOOK Pivot ski bindings were sold in black, white and yellow. LOOK is written on the front of the binding and Pivot is written on the side of the heel piece. Only date codes of H7, I7 or J7, without the letter ‘V” stamped on the black plastic piece behind the turntable heel unit are included in the recall. Date codes can be found on the bottom of the heel piece and can be viewed by rotating the turntable heel unit 90 degrees.

Model Number    Model Name

FCFA002    0000TU    PIVOT 18 B115 WHITE ICON

FCFA003    0000TU    PIVOT 18 B95 WHITE ICON

FCFA004    0000TU    PIVOT 18 B75 WHITE ICON

FCFA006    0000TU    PIVOT 14 DUAL WTR B115 W. ICON

FCFA008    0000TU    PIVOT 14 DUAL WTR B75 W. ICON

FCFA013    0000TU    PIVOT 14 DUAL WTR B115 BLACK

FCFA014    0000TU    PIVOT 14 DUAL WTR B95 BLACK

FCFA016    0000TU    PIVOT 12 DUAL WTR B95 Y/BK

FCFA017    0000TU    PIVOT 12 DUAL WTR B115 BLACK

FCFA018    0000TU    PIVOT 12 DUAL WTR B95 BLACK

Incidents/Injuries: None reported

Sold At: Specialty ski stores including Christy Sports, REI, Retail Concepts and Vail Resorts nationwide and online at Backcountry.com and Evo.com from September 2017 through November 2017 for between $375 to $475.

Manufacturer(s): Look Fixations S.A.S., of France

Importer(s): Group Rossignol USA Inc., of Park City, Utah

Distributor(s): Group Rossignol USA Inc., of Park City, Utah

Manufactured In: France

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

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

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

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

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.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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