Things remembered recalled children’s jewelry from the market on July 19, 2016. The recall is referenced by the Recall Number 16-228. According to the United States Consumer Product Safety commission’s website, the reason behind the decision to recall was a violation of lead standards for children products. Specifically, the product subjected to the recall included the silver heart bracelets and the sweet charm necklaces for children. Silver heart bracelets are six inches long each of which has ten silver hearts linked by circle links. Besides, it has a lobster claw clasp for its closure and one charm in the shape of a heart. All the hearts are silver-plated. On the other hand, the necklaces are fifteen inches long comprising gold-plated box chain measuring thirteen inches long and an extender measuring 2 inches long. Its closure mechanism takes the form of a lobster claw clasp. Besides, it has three charms comprising an ice cream cone and a crystal cupcake both of which are pink in color and a gold-plated tag. The word “SWEET” is engraved on the tag in question. The recall covered the jewelry that had been sold in both the United States and the Canadian markets. On one hand, 6 700 bracelets and 3 300 necklaces had been sold in the United States market. On the other hand, 300 bracelets and 100 necklaces had been sold in the Canadian market (United States Consumer Product Safety Commission, 2016).
Prior to the recall date, no incidents or injuries had been reported. Nevertheless, had the jewelry not been recalled and their uses result in any injury to the consumers, the manufacturer would likely be liable for negligence. The critical analysis of the said liability is predicated on several limbs including the duty of care, breach of that duty, the standard of care, actual causation, proximate causation and actual injury. These are the elements that that were established in the landmark case of Donoghue v Stevenson as elements that have to be proved by a plaintiff to successfully claim under the tort of negligence.
The second limb is joined at the hip with the duty of care. It entails the standard of care. It refers to the degree of care owed by the defendant to the injured person. In most cases, the standard of care encompasses the degree of care expected of a reasonable person in similar circumstances. However, the degree of care varies in instances such as where children are involved or where the alleged tortfeasors are experts (Okrent, 2010). The silver bracelets and necklaces manufactured by Things Remembered were designed for use by children. Therefore, they are to be held to a higher standard of care than the degree reasonably expected of a manufacturer of jewelry designed for use by adults.
Besides, a plaintiff has to prove the breach of a duty of care having established the existence of the said duty of care. The plaintiff must show that the defendant failed to reasonably exercise the care expected of him or her in respect of the injured person (Faegre & Benson LLP). Things Remembered failed to keep the amount of lead used in the manufacture of their jewelry within harmless levels. Besides, they failed to ensure that the designs and shapes adopted for the charms in the bracelets and necklaces were not the kinds that could be easily mistaken for real candy and food by children. Therefore, they set in motion activities that posed an unacceptable degree of risk without taking reasonable steps to prevent the risk from emanating in the event of adversity.
Moreover, a plaintiff must establish both the elements of actual causation and proximate causation. Actual causation also referred to as the cause, in fact, covers conduct which directly causes the plaintiff’s injury. On the other hand, proximate causation covers conduct which is not a direct and immediate cause of the plaintiff’s injury but which sets in motion a series of events that culminates in the plaintiff’s injury. To this end, the plaintiff has to show the existence of a proximate causal relationship between the defendant’s breach of duty for care and the plaintiff’s injury. The test applied in this regard is the “but for” test. It essentially implies that the plaintiff would not have suffered injury but for the defendant’s breach of the duty of care (Harpwood, 2003). Applying the rule to the case in question, proving proximate cause is would not be a difficult task to the plaintiff. All they need to do is to provide proof that the children injured suffered from a condition which is a natural and direct consequence of lead ingestion and that the lead ingested originated from the Things Remembered’s bracelets and necklaces without which the children would not have suffered any injury.
Finally, a plaintiff has to demonstrate that the injured person sustained actual injury. The injury in question is the kind of which is recognized by the law (Faegre & Benson LLP). All the plaintiff needs to proof is the fact that the person injured suffered from a condition caused by ingestion of lead.
In conclusion, Things Remembered would have been liable under the tort of negligence had there been any injury suffered by the consumers of its jewelry before the recall of the said jewelry. All the negligence elements would have been easily demonstrated by plaintiffs. Nevertheless, in their defense, things Remembered could try to negate any of the elements discussed above. However, they are unlikely to raise a water-tight defense.
References
Caparo Industries Ltd v Dickman [1990] UKHL 2.
Donoghue v Stevenson [1932] UKHL 100.
Faegre & Benson LLP. (n.d.). US Product Liability Law. Retrieved August 28, 2016, from UK Trade & Investment: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/301340/US_Product_Liability_Law.pdf
Harpwood, V. (2003). Modern Tort Law (Fifth ed.). London, Sydney & Portland: Cavendish. Retrieved August 28, 2016, from https://books.google.co.ke/books?id=zMs6T2csv-AC&printsec=frontcover#v=onepage&q&f=false
Okrent, C. (2010). Torts and Personal Injury Law (Fourth ed.). New York: Delmar Cengage Learning. Retrieved August 28, 2016, from https://books.google.co.ke/books?id=L0Rh_34YAoAC&printsec=frontcover#v=onepage&q&f=false
United States Consumer Product Safety Commission. (2016, August). Things Remembered Recalls Children’s Jewelry Due to Violation of Lead Standard. Retrieved August 28, 2016, from http://www.cpsc.gov/en/Recalls/2016/Things-Remembered-Recalls-Childrens-Jewelry/#remedy
