How to handle a product injury?

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How to handle a product injury?

The other day my daughter was injured at a store. She squeezed a squeeze toy with the goop inside and it ruptured. It squirted all over her face and we took her to an emergency room because she complained of burning sensations in one of her eyes. We have paid a $250 medical insurance deductible, $50 for prescription meds and are expecting another $100 fee from an urgent care clinic who turned her away. We don’t know whether to eat the expenses or seek compensation from the toy manufacturing company, and if we should inform our insurance company about the circumstances of the injury.

Asked on August 21, 2011 Ohio

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Your product liability claim would be against both the manufacturer of the product and the store where the incident occurred.  You should obtain the insurance information of the manufacturer and store.

When your daughter completes her medical treatment and is released by the doctor, obtain all  the medical bills and medical reports.  File your daughter's personal injury claims with the insurance carriers for the manufacturer and store.  Compensation for the medical bills is straight reimbursement.   The medical reports will document the nature and extent of your daughter's injuries and will be used to determine compensation for pain and suffering.  Compensation for pain and suffering is an amount in addition to the medical bills.  If you are dissatisfied with settlement offers from the insurance companies, file your lawsuit for negligence and strict liability.  These are separate causes of action (claims) in the lawsuit.  If the case was settled with both defendants, no lawsuit is filed.  If the case was only settled with one defendant, your lawsuit would only name the remaining defendant.

Negligence is based on the failure to exercise due care (that degree of care that in this case a reasonable manufacturer would have exercised under the same or similar circumstances to prevent foreseeable harm).

Strict liability is liability regardless of whether or not there was due care.

Both the manufacturer and  seller (store) are liable for negligence and strict liability.  The store is liable even if it did not know or could not have known the product was defective.

You will need to be appointed guardian ad litem to sue on behalf of your daughter.  If the case is not settled with both defendants, you will need to file the lawsuit on behalf of your daughter prior to the expiration of the applicable statute of limitations or your daughter will lose her rights forever in the matter.

Whether or not your insurance covers your daughter's medical expenses, you can still pursue the above claims.


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