Skateboard Product Liability

Whose Pocket Is Next?

When kids get hurt playing sports, we often want to hold someone responsible. The owner of the property where they were injured and/or the manufacturer of the equipment they were using are the most likely candidates. Because skateboarders often ride on public property, the government is likely the targeted “deep pocket.”

To protect themselves, many states are enacting legislation that limits the liability of government entities and their employees in such situations. California has recently classified skateboarding as a “hazardous recreational activity,” a status enjoyed by a few other sports like hang gliding and surfing. Such a classification makes it more difficult to win lawsuits against the government for injuries incurred on public property.

In the past, government entities have often paid small amounts to settle those lawsuits because it proved less expensive than defending against them in court. But according to one former city attorney, they may be increasingly less likely to do so. Now, individuals injured while skateboarding on public property may have to look for another source of compensation for injuries, and the next logical target would be skateboard manufacturers, distributors, and retailers.

Although few members of the skateboard industry have in the past been sued for product defects, it appears that they are more likely to be named in the future, and more likely to have to pay when they are. So what can skateboard manufacturers, distributors, and retailers do to protect themselves against product liability claims?

Product liability claims come in three basic flavors: design defects, manufacturing defects, and failure to warn of a risk presented by the product.

A design defect is one that creates a “foreseeable risk of harm” that could have been avoided or reduced by a reasonable alternative design. Foreseeable risk of harm includes injuries that an ordinary person could expect to incur under normal use of a product.

A slightly different rule is used in California and a few other states that defines a design defect in one of three ways: In these states, a product is considered defectively designed if it fails the “consumer expectation test.” This requires the product to perform as safely as an ordinary consumer would expect when used reasonably. A product can also be considered defectively designed if it caused injury and the defendant can’t prove that the utility of the design outweighed the risk.

A manufacturing defect occurs when a product departs from its intended design, even though all possible care might have been taken in the manufacture and promotion of the product. This is why a good quality-control system is so important in most industries.

The third type, a “failure to warn” defect, occurs when a foreseeable risk of harm caused by a product could have been avoided or reduced by reasonable warnings or instructions, but no such warnings or instructions were provided. In general, however, there is no duty to warn of a known or obvious risk.

A Washington-state case involving a child who was injured when he flew off a trampoline is an example of both design- and warning-defect claims. The court found that the trampoline “passed” the consumer expectation test because the dangers of jumping on a trampoline are obvious enough to be expected by the ordinary consumer. The court also said that the utility-versus-risk test was inapplicable because it was impossible to imagine an alternative design for a trampoline that would have prevented the harm. Finally, the court held that the trampoline did not have a “failure to warn” defect because the plaintiff ignored the numerous warnings posted, making it unlikely that more detailed warnings would have changed his behavior and prevented the injury.

Manufacturers are not the only entities exposedo product-liability lawsuits. In California and many other states, a consumer injured by a defective product may sue any business in the chain of production and supply, from the manufacturer through the retailer. Distributors and wholesalers, regardless of their actual responsibility for the defect, are also at risk. For example, a child could be injured by a defectively designed skateboard, and his parents could sue the retailer. Most often, however, the injured party will sue all the links in the distribution chain. Skateboard manufacturers, retailers, and distributors have all been named as defendants in product-liability lawsuits, and while it is rare for such cases go to trial, it can still be expensive for any company to get out of the case, however it’s done.

In a case in California involving faulty mountain-bike forks, a jury awarded the plaintiff over 400,000 dollars from the producer and distributor of the forks. The manufacturer, who failed to properly weld the fork assembly, settled out of court for 135,000 dollars, and the amount was deducted from the jury award.

A case in New Hampshire involved a youth who attempted to slam-dunk a basketball. His teeth got caught in the net; he lost two teeth, so he sued the net manufacturer. Rather than risk an expensive trial, the net manufacturer settled out of court for 50,000 dollars.

Through their exposure to skateboard videos and advertising by skateboard manufacturers, the average skateboarder has probably seen all kinds of videotapes and photographs of skateboarders sliding down handrails, jumping on stationary or not-so-stationary objects, dropping in on ramps┬┐all the while perched atop the trusty skateboard. As a result, it is no surprise that a skateboarder will attempt to perform the same kinds of tricks on his or her own skateboard, subjecting its trucks, bearings, riser pads, hardware, and wheels to massive abuse. Unfortunately, under those conditions a skateboard sometimes will break, a truck will snap, or a bearing will lock up. If someone gets hurt as a result, the manufacturer and suppliers of the skateboard could find themselves defendants in product-liability lawsuits.

The best way to minimize exposure is to avoid product failures resulting from defects, and the next best is to minimize liability in case products do fail. Accordingly, the most important thing is to identify defects in a product; from a practical standpoint, it is critical to catch any defects early in the development process.

The following facts from an actual court case demonstrate how a new product was devastated by a design defect: had the defect been caught in the design-review stage, it would have cost 35 dollars to fix. It if had been caught after the design review, but before part procurement, it would have cost 177 dollars to fix. If it had been caught after part procurement, but before assembly, it would have cost 368 dollars to fix. If it had been caught after production but before shipping, it would have cost 17,000 dollars to fix. Unfortunately, the defect was not caught until after the product reached the marketplace, and it cost 590,000 dollars to correct the problem┬┐16,500 times the original expense. Worse, had any injuries to a consumer resulted from the defect, the manufacturer could have been sued, with its liability even higher because the defect was not discovered until the product was on the market.

There are numerous ways to discover defects early and minimize risks. Company guidelines and employee education and input are crucial in preventing defects. Employees should be able to identify and communicate potential problems, whether they relate to the design or manufacture of a product. They should be encouraged to take the responsibility of reporting defects or potential defects, even if the defect does not involve their particular job or department. The company must be able to respond to problems, solve them, and keep accurate records. Unfortunately, internal political battles can lead to a failure to identify product defects, and the creation of poor or exaggerated documentation can later be used against a company. Division within a company clouds a team’s objective of creating a superior defect-free product.

Once a product is on the market, a company should remain alert for potential problems or defects. Some product failures can still be avoided at this point, and liability from any resulting injuries can be minimized. Here again, there are numerous ways to discover defects and to minimize exposure. Retailers should make sure they and their salespeople are familiar with products they sell and how those products are meant to be used. Critiques from customers and competitors are valuable in identifying and correcting defects. And finally, proper insurance coverage is crucial to prevent the often catastrophic effect of product-liability claims.

Such claims, even if settled out of court, can destroy a company that is not prepared to deal with them. To remain competitive in the marketplace, a company must remain diligent about its products and constantly strive for improvement.

This article is for general information purposes only, is current only as of the indicated date, and must not be regarded as legal advice. Gabrielle A. Holley is an associate in the San Diego office of Pillsbury Madison & Sutro LLP. Ms. Holley practices trademark and copyright law. Kimberly A. McDonnell is Senior Counsel in the San Diego office of Pillsbury Madison & Sutro LLP. Ms. McDonnell practices intellectual property and torts litigation. Ms. Holley and Ms. McDonnell can be reached at: (619) 234-5000.unately, internal political battles can lead to a failure to identify product defects, and the creation of poor or exaggerated documentation can later be used against a company. Division within a company clouds a team’s objective of creating a superior defect-free product.

Once a product is on the market, a company should remain alert for potential problems or defects. Some product failures can still be avoided at this point, and liability from any resulting injuries can be minimized. Here again, there are numerous ways to discover defects and to minimize exposure. Retailers should make sure they and their salespeople are familiar with products they sell and how those products are meant to be used. Critiques from customers and competitors are valuable in identifying and correcting defects. And finally, proper insurance coverage is crucial to prevent the often catastrophic effect of product-liability claims.

Such claims, even if settled out of court, can destroy a company that is not prepared to deal with them. To remain competitive in the marketplace, a company must remain diligent about its products and constantly strive for improvement.

This article is for general information purposes only, is current only as of the indicated date, and must not be regarded as legal advice. Gabrielle A. Holley is an associate in the San Diego office of Pillsbury Madison & Sutro LLP. Ms. Holley practices trademark and copyright law. Kimberly A. McDonnell is Senior Counsel in the San Diego office of Pillsbury Madison & Sutro LLP. Ms. McDonnell practices intellectual property and torts litigation. Ms. Holley and Ms. McDonnell can be reached at: (619) 234-5000.