The Lawn Dart Files: the Products Liability Case Part III - LexTalk

The Lawn Dart Files: the Products Liability Case Part III

Posted on 04-13-2016 by
Tags: Trending News & Topics , pocatello , injury help , injury accident , idaho falls , boise , personal injury help , idaho , Personal Injury

Our verb to pelt (as in, "we pelted the kids on the other side of the street with snowballs," or "we pelted the kids from the other side of the street with lawn darts") comes from the ancient Greek word peltast. This word refers to a light infantryman who would throw javelins and shoots arrows at the enemy as they approached the main battle line of heavily-armored hoplites. When the enemy got too close, the peltasts ran back behind the lines, unhampered by armor or heavy weapons, and continued pelting the enemy with whatever missile weapons are at hand. (Interestingly, the word peltast originally had nothing to do with throwing. The Greeks called their light infantry peltasts in reference to the light shield, or pelte, which they carried. It was a light wooden frame covered by an animal pelt.)


A favorite missile weapon of the peltasts, especially when facing cavalry, was the dart. The Romans, who also used them, called it a plumbata. They weren't as accurate as a javelin, but against a big target like a horse, they didn't need to be. The weight was more concentrated near the point than in a javelin, allowing better penetration. In all, the plumbata was a nasty weapon.


And as you can see below, with the possible exception of the barbed tip, it is functionally and mechanically identical to a lawn dart.


The Roman plumbata: the original Lawn Dart

Peltasts didn't need to be warned that darts were a dangerous weapon that could cause serious bodily harm to people or animals at which they were thrown. That was the whole point, after all.


In the 1970s, when American toy companies modified the plumbata slightly and repackaged it for outdoor family fun, the original packaging used by some manufacturers had no warnings at all. The dangers, they believed, were obvious. After some 700 people a year began showing up in the emergency rooms, manufacturers became more careful to warn purchasers that lawn darts could be deadly if misused, and that they probably shouldn't let children play with them unsupervised.


Were these warnings necessary? Weren't the dangers obvious? Probably (except to children, who aren't going to read the warnings anyway).  But including a warning on the package is a cheap way for the seller to cut down a little bit on the danger, and a lot on the lawsuits.


After negligence in the design or manufacture of goods (see the previous post in this series), the second way in which a manufacturer or seller of goods can be liable for injuries caused by the use of those goods is if they failed to warn the consumer of a risk of injury.


Specifically, the law requires three things before it will find a seller liable for failing to warn:


1.       The seller must know or have reason to know that the product is likely to be dangerous when used as intended;

2.       The seller must have no reason to believe that the buyer or user will realize the danger on his own; and

3.       The seller must fail to exercise reasonable care to inform the buyer or user of the danger.


Any smart manufacturer will see right away that there is a lot of wiggle room in these rules, wiggle room that can get them hit with millions of dollars in judgments in personal injury cases. It is easy after someone has been hurt for a jury to say "you should have known it would be used that way," or "you should have known that they wouldn't realize the danger." So, by default, manufacturers and sellers now plaster every product with warnings.


"DANGER. Do not use this chainsaw to perform surgery on yourself."


"Do not use this toaster under water."


"Do not throw Lawn Darts at other people."


Every additional warning on the product increases the chance that a judge or jury will say "the seller exercised reasonable care to inform the buyer of the danger," even if every additional warning means they are all more likely to be ignored. It is cheap insurance. 


So after a few years, Lawn Darts hit the stores pelted with warnings. But lots of people were still hurt. Lack of warnings was not the problem, and injured plaintiffs could not easily claim they were unaware of the danger. But there remains one more products liability peg on which to hang Lawn Darts.

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