Salsa Cycles Recalls Bicycle Forks Due to Risk of Fall Hazard

Identifying Information: Salsa Bearpaw Bicycle Forks

Recall Information: Salsa Cycles toll-free at (877) 774-6208 from 8 a.m. to 6 p.m. CT Monday through Friday, or online at http://www.salsacycles.com and click on the “Fork Recall” button for more information.

Units: 2500

When sold: September 2013 through November 2014

Incidents/Injuries: None

The bicycle fork can bend or break, posing a fall hazard to the rider.

This recall involves all aluminum Salsa Bearpaw forks sold separately and on Mukluk bicycles. The forks have date code 20130524, 20130710 or 20130826 stamped on the fork steerer, followed by “CWI2201BAN2” and a Salsa compass graphic on the bend of the fork blades. Consumers or the dealer will need to disassemble the front of the bicycle to access the steerer tube with the date code and model information. The forks were sold in “tequila lime” with black paint, “metallic gold,” red and black. The bikes were sold in sizes x-small, small, medium, large and x-large.

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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Utah Rental Release void because the product was subject to recall

Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937

The public policy exception allows the release to be void when the recalled product was not pulled from the rental fleet.

This is a Utah ski rental case. The plaintiff rented skis from the defendant. While skiing, the plaintiff fell injuring her neck. She claimed she fell because the bindings prematurely released. The bindings were manufactured by K2 a subsidiary of the Jarden Corporation.

Prior to the plaintiff’s injury, K2 had notified the Consumer Product Safety Commission and issued a recall for the bindings the plaintiff was using. The recall was based due to a tendency for the bindings to unexpectedly release. The recall was issued by the CPSC and K2 had sent notice of the recall to retail and rental shops.

The plaintiff filed this suit in federal court against the defendant rental shop and the binding manufacture K2. The defendant rental shop filed this motion to dismiss because the plaintiff had signed a release when she rented the recalled skis and bindings.

Summary of the case

The defendant rental shop filed a motion for summary judgment because the plaintiff had signed a release upon renting the skis and bindings. The court first looked at releases and Utah’s law and found Utah allows people to “contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” Under Utah’s law, there are three exceptions that can void a release when:

(1) the release offends public policy,

(2) the release is for activities that fit within the public interest exception, or

(3) the release is unclear or ambiguous.

The court found that the second and third exceptions were not at issue here. The first issue, that releases must be compatible with public policy under Utah’s law. The court looked at the public policy exception to the rule slightly different in Utah than in most other states that allow a release to be voided due to public policy issues.

The court looked at the federal law that created the Consumer Products Safety Commission and created the requirement that products be recalled.

Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.”

The court then stated: “The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.” Finding this requirement puts an extreme burden on shops, retail or rental when dealing with recalled products.

The rental shop argued that the federal law cannot preempt state law, and state law allows releases. The court agreed, however, the court stated the law did not conflict or preempt the Utah law.

The court went on to say.

The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor allowing a party to insulate itself from harms caused to others arising from unlawful acts.

The said that if a release relieved the retailer of the duty to recall products, then the effect of the law would be nullified and would violate the value of the law. Public policy issues should encourage compliance with laws designed to make products safer not void them.

The court held the rental companies arguments were not valid and denied the motion for summary judgment.

So Now What?

If you get a recall notice, and you are in a retail store, rental shop, or distributor, remove the product from the shelves and/or the rental fleet. Period. The judge in his final sentence stated: “GGT’s preinjury release is unenforceable and invalid as a matter of public policy.” There is no leeway in that statement.

This may create disaster in a small rental shop. Most times the shop has one binding on all of its skis. It makes setting the bindings easier and makes training the employees on setting the bindings much easier also.

It can be a scary situation when you open an email and find you have no rental fleet. You should contact the company immediately and tell them that you are out of business effectively unless they respond and assist you in correcting the entire recalled product or replacing it.

This may be an issue you want to discuss with someone when you are negotiating bindings for your rental fleet.

Product recalls are not minor matter. Any product you have in your store that is subject to a recall is no longer available for sale until after the product has been fixed according to the manufacture’s requirements.

What do you think? Leave a comment.

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Do you really want to sell helmets this way? Does this article promote the industry?

Or does this article just create liability issues?

I recently read an article in a trade magazine about selling cycling helmets. As usual, it caught my attention, but for different reasons. This article was directed at retailers as an educational tool on how to sell helmets. However, the article was at best misleading and would probably get the retailer in trouble in the future. Besides, it created a sales program focused on the negative side of cycling rather than the benefits.

Here are the quotes that I found amusing, actually laughable if they were not so wrong.

As a bike storeowner,thisrgivessyouvbothoanbincredibleropportunityr–uandya–powerfuloresponsibilityi–itotupsell yourlbikeucustomerssandeconvinceothemctotpurchaseuachelmet andmperhapspsavepa life.a life.

It’s your responsibility to inform your customers of the invaluable protection a helmet provides, the importance of wearing a safe helmet that fits well, as well as the dangers and statistics of cycling-related head injuries.

According to the Insurance Institute for Highway Safety (IIHS), 91% of bicyclists killed in 2009 weren’t wearing helmets. The IIHS has estimated that wearing a helmet can reduce head injuries by 85%.

In the United States the Consumer Product Safety Commission (CPSC) regulates helmet law.

…-keep a helmet in shambles from a crash on display and include a testimony about the life it saved…

[emphasize added]

Seriously? This was written let alone allowed into print?

However, it was the hocus pocus of a graph in the article that caught my eye.

Bicyclist deaths by helmet se, 1994-2009

No Helmet Use

Helmet Use

Total

Year

Num

%

Num

%

Num

1994

776

97

19

2

796

1995

783

95

34

4

828

And so on through 2009.

The title implies the deaths occurred because cyclists did not wear a helmet. If you take two unrelated numbers and compare them, you can accomplish anything. For proof of this do a web search for “moon landings,” “Kennedy assignation,” and “World trade center,” for an interesting journey through made-up  statistics to prove this point. Here they point out who died without a helmet compared to who died wearing a helmet and imply that everyone who died without a helmet died of a head injury.

Absolute fabrication of statistics to scare people!

Helmets prevent head injuries; helmets don’t save lives. If you are involved in an accident severe enough that a head injury will kill you, other parts of your body will be injured severely enough to kill you.

So let’s tackle these misstatements in the article.

As a bike storeowner, this gives you both an incredible opportunity – and a powerful responsibility – to upsell your bike customers and convince them to purchase a helmet and perhaps save a life.

As a retailer you have NO legal responsibility to your customers as far as educating them. You DO have a legal responsibility to educate them correctly if you do educate them. Whether or not you have a moral or ethical responsibility is something you must deal with and a risk you must accept. That risk evaluation also includes losing money by not selling accessories like helmets. However, it is shameful for this article to try to place a burden on a retailer for not selling a helmet.

Helmets do not save lives; helmets may prevent head injuries.

It’s your responsibility to inform your customers of the invaluable protection a helmet provides, the importance of wearing a safe helmet that fits well, as well as the dangers and statistics of cycling-related head injuries.

What is a “safe helmet?”

If you are going to use statistics to prove your point, then you better understand what you are saying. You cannot take two “stats” and compare them to prove a point when the numbers are derived from different sources or different factors. (A perfect example of this is the chart that went with the article).

According to the Insurance Institute for Highway Safety (IIHS), 91% of bicyclists killed in 2009 weren’t wearing helmets. The IIHS has estimated that wearing a helmet can reduce head injuries by 85%.

Just because a large percentage of people died who were not wearing a helmet does not mean you can then say those people died of a head injury. That is like saying 97% of the people in the US who eat ice cream do not get cancer. Only three percent of the population gets cancer anyway.  However, that statistic is 100% correct and 100% meaningless, just like the statistics in the article. (However, you can use this statistic to eat more ice cream if you want.)

In the United States, the Consumer Product Safety Commission (CPSC) regulates helmet law.

This is the second time I’ve seen this in the past couple of months. NO! The CPSC is tasked with eliminating dangerous products. If a helmet is not doing what you say it is supposed to do AND there is the possibility of injury, then the CPSC can become involved. There are no federal helmet laws. The CPSC is a federal agency. There are some state helmet laws and some federal regulations concerning helmets. Those regulations are all based on a product meeting the tests of either a testing organization (ASTM, ANSI, etc.) or private non-profit organizations that test helmets (Snell).

…-keep a helmet in shambles from a crash on display and include a testimony about the life it saved…

These numbers also lead one to believe the people died because the cyclist was wrong and not wearing a helmet. However, that is not true either. Cyclists die when vehicles hit them. If the speed of impact is greater than 30 to 40 mph, the cyclists have almost a zero chance of surviving the impact. (See Zone 30 and Pedestrian and Bicyclist Intersection Safety Indices.) Distracted drivers, drivers not paying attention, drivers who don’t care kill cyclist with or without a helmet. See Sharing the Road With Bicycles for more examples.

Do Something

Why is this important? Because consumers do trust and believe retailers as the article points out. If you provide consumers with information which they rely upon in making a purchase which is incorrect and results in an injury you are liable. The manufacturer is going to walk away from this lawsuit without paying a dime. This is a lawsuit the retailer alone must fight.

The retailer made a misstatement that the consumer relied upon to the consumer’s detriment.

This helmet will save your life. The cyclists die of a head injury, and the retailer is writing a check.

You have to educate the consumer; however, when you do that you need to know what is correct. You cannot give the consumer incorrect information. You need to tell the consumer helmets prevent head injuries. No one knows, and there is zero proof that helmets save lives. In fact, the opposite is true. Looking at injury and fatality reports, helmets do nothing to save lives.

What is bad about this article is the fact the article was written by a helmet manufacture and published by an industry magazine. The magazine failed its readers because it published an article without checking the facts in the article. The manufacture that wrote the article is selling helmets based on made-up  statistics and facts to promote fear.

Cheap journalism is bad journalism.

On top of that are we helping cycling? If you are trying to sell a helmet to someone based on fear, are we helping the sport? Or are we telling parents that cycling is too dangerous for their kid? Is that how you want to sell cycling; this is a dangerous sport, so spend another $100 with me?

Studies show that using fear or laws to scare people into using helmet’s results in less people cycling. See Cyclists Without Helmets Deserve to Die, Doctors Argue Against Mandatory Bike Helmet Laws or Liberty or death; don’t tread on me.

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

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