By Robert A. Clifford
Three-year-old Maximillian Padilla of the Chicago area died from strangulation after he became entangled on one of the cords on the miniblinds at his home. The Hunter Douglas blinds had been installed by the previous homeowners.
Hunter Douglas is a member of the Window Covering Manufacturers Association (WCMA), an industry trade group that represents and promotes the interests of manufacturers, fabricators and assemblers of window coverings. It also is responsible for developing and implementing standards for the manufacturing of window coverings.
The WCMA established the Window Covering Safety Council (WCSC), a coalition of major manufacturers, importers and retailers of window coverings in the United States, to spearhead a voluntary corrective action plan to make the blinds safer. Together, the two groups voluntarily initiated a retrofit and recall program designed to reduce the likelihood of pull-cord strangulations and avoid a mandatory recall by the Consumer Product Safety Commission (CPSC). Their specific instructions advised consumers to eliminate the loop in two corded horizontal and vertical blinds.
The boy’s father sued the makers of the blinds and the two safety groups on various theories, including negligent recall. U.S. District Court Judge Robert M. Dow Jr., declined to dismiss the negligence claim brought against the industry groups, ruling that it was possible that the WCMA and WCSA owed a duty of care to Padilla’s son. Padilla v. Hunter Douglas Window Coverings Inc. , No. 09 CV 1222 (N.D.Ill., decided Jan. 19, 2010).
As the plaintiff set forth in its brief, “From its inception, defendants took on a task that they were not designed to meet. [citation omitted]. Defendants had no engineers, no human factors or safety professionals, and epidemiologists or statisticians to assess and quantify the risk posed to consumers by window covering cords.”
Still, the WCMA collected membership dues and designed retrofit kits, presenting itself to the public, the industry and the CPSC as the leader on window blind safety.
The defendants also failed to act responsibly in identifying, warning against and promoting an industry-wide recall of the window blinds. This is evident in that, according to the plaintiff’s statistics, about 1 billion dangerous miniblinds and window coverings were manufactured and only several hundred thousand of the retrofit kits had been distributed. As the Padilla court held, an issue of fact exists for a jury to determine whether the trade associations “can be held liable for failing to make those products safe and warn about their risks, after allegedly undertaking to do so.”
The issue of duty of a trade association was examined in Illinois in Bailey v. Edward Hines Lumber , 308 Ill. App.3d 58, 719 N.E.2d 178, 182 (1st Dist.1999). The case involved carpenters injured while installing a roof truss system. A lawsuit was brought against the lumber company that supplied the trusses, and that company asserted a third-party contribution claim against a nonprofit trade association that published a pamphlet containing recommendations for the installation of wood trusses. Liability was not extended to the association.
The Padilla court distinguished that case: “The Bailey court concluded that the trade association had not undertaken a duty to the carpenters because the instructions were advisory, the trade association could not force the carpenters to follow the instructions, and the trade association had expressly disclaimed liability in the pamphlet.” Padilla at 4.
A remarkably similar case to Padilla was decided in Alaska. In Rountree v. Ching Feng Blinds , 560 F. Supp.2d 804 (D. Alaska 2008), the court undertook a seven-factor inquiry to determine if a duty of care should be imposed on a trade organization: foreseeability of a particular type of injury; certainty that harm occurred; nexus between the defendant’s conduct and the harm; moral blame of the conduct; policy of preventing future harm; burden on the defendant and the consequences to the community if a duty is imposed; and the cost and availability of insurance for trade associations. Although the Padilla court did not cite Rountree , many of these factors went into the Padilla court’s determination.
Padilla presents many interesting arguments for future recalls. With all of the defective products that consumers recently have been exposed to – including cars, cribs, food and appliances – it will be interesting to note if Padilla is applied to other recalls.
In particular, the Toyota recall of millions of vehicles with sticking gas pedals will come under tremendous scrutiny after Transportation Secretary Ray LaHood accused the automaker of hiding a “dangerous defect.” Were auto safety associations or other trade groups also involved?
How effective is a recall? Is it broad enough to reach potentially all the consumers of that product? Is the recall timed to prevent consumers from using a dangerous product without knowledge of the potential harm?
Manufacturers must be responsible if they intend to continue to make profits from products they put in the stream of commerce. Trade associations should be equally responsible if their activity rises to the level of owing the consumer a duty of care.