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Every year, thousands of young children are too near toxic household products. Every year, these close encounters send thousands of victims to the emergency room.
According to the U.S. Consumer Product Safety Commission, the vast majority of these victims are children under 5. Many of these injuries happen after children were exposed to products that are perfectly safe for adults to handle. “Although a cosmetic product may not be harmful when used according to the directions, it is important for parents and caregivers to know that a young child could be seriously injured by these products,” cautioned Rebecca McAdams, who is a research associate at Nationwide Children’s Hospital.
Nail care products, hair care products, and skin care products were the most likely culprits. These things are harmful or fatal if children swallow them. Furthermore, just being near them may cause serious chemical burns, especially if the child touches or spills a chemical product. These dangers are especially acute for children under 2, who have just become mobile and able to grasp objects.
The American Academy of Pediatrics recommends that potentially dangerous products, such as the ones mentioned above, be securely stored away from children.
How Do These Injuries Happen?
Since the 1970’s, the daycare industry has grown by about 250 percent. That sounds like a significant number. But the growth rate lags behind the number of single-parent and dual-income households. These numbers have increased even more. So, simply stated, there are more children than the current daycare infrastructure can accommodate.
Many facilities are hard-pressed to provide basic supervision and other services to the children in their care. Issues like exposure to toxic chemicals get placed on the back burner.
Similarly, public and private schools sometimes have more children than they can handle. That’s especially true for extracurricular and other after-school activities.
Private business, mostly hair and nail salons, struggle with similar issues. For the most part, these businesses cater to young women with young children. Unfortunately, in many cases, these enterprises are not family friendly. There may be no way to keep young children occupied while their parents receive services. Anyone with children knows that a bored child is a disaster waiting to happen.
Your Claim for Damages
A few toxic exposure cases, such as asbestos exposure among adults, may indeed be accidental. The victim was in the wrong place at the wrong time, and injury was almost inevitable.
Typically, however, negligence causes toxic exposure injuries. This negligence often involves a lack of ordinary care, as follows:
- Duty: In school, daycare, business, and other such toxic exposure cases, the owner must have a legal duty to the victim. Typically, the victim is an invitee. If the victim had permission to be on the property and benefited the owner in any way, the owner has a duty of reasonable care. In a few other cases, the victim was a licensee (permission but no benefit). Owners have a lower legal responsibility in these instances.
- Knowledge: In this context, the owner must know that there are dangerous chemicals or other substances on site and that there are children or other potential victims on the premises as well. Other potential victims include pregnant women and people with pre-existing medical conditions.
- Foreseeability: The victim’s injury must be a foreseeable consequence of the owner’s action or inaction. Foreseeable is not the same thing as inevitable, but it is synonymous with “likely.” For example, in a car crash case, the tortfeasor (negligent actor) is liable for a pedestrian injury, but the tortfeasor is not liable for injuries due to medical mistakes at the hospital.
In negligence cases, the victim must establish negligence by a preponderance of the evidence (more likely than not). Additionally, there is often a direct relationship between the amount of evidence the plaintiff presents and the amount of damages the jury awards. So, a New York personal injury attorney must diligently collect as much evidence as possible.
Industry standards help establish negligence. Basically, there is a presumption of liability if the tortfeasor violated an industry standard. AAP storage standards, like the ones mentioned in the above story, are a good example.
Other times, a statute establishes the standard of care. In New York, landowners may be responsible for damages as a matter of law if:
- They violate a safety law, and
- That violation substantially causes injury.
In New York, lawmakers recently approved legislation in this area. S501B requires that business owners keep many toxic chemicals away from children. If any public or private entity fails to uphold these requirements, the time-saving negligence per se shortcut may apply.
Even if victims have pre-existing conditions which make them more vulnerable to toxic exposure injuries, a New York personal injury lawyer can typically obtain full compensation.
Victims should not have to use their own financial resources to pay doctor bills and other injury-related expenses.
This compensation usually includes money for economic losses, such as medical bills, and non-economic losses, such as pain and suffering. Additional punitive damages may be available as well, in some extreme cases.
Third-Party Liability
Small children and vulnerable adults often sustain catastrophic injuries. Individual school instructors, daycare teachers, and other such people often do not have enough personal insurance coverage to provide fair compensation to victims. Indeed, they may have no insurance against such claims at all.
Fortunately, New York has very broad third-party liability rules. So, the tortfeasor may not be the only person or entity responsible for damages. Respondeat superior (“let the master answer”) is a good illustration. Employers are legally responsible for their employees’ negligence under the following circumstances:
- Employee: In tax law, employees are people who work regular hours and receive regular paychecks. But in this context, anyone the employer controls is an employee. That control could be something like work location or work hours. So, even unpaid volunteers are employees for negligence purposes. The same thing applies to people like independent contractors, owner-operators, and perhaps even franchise owners.
- Scope of Employment: In much the same way, any act which benefits the employer in any way is within the course and scope of employment. Such acts could include cleaning up a spill in the break room or watching children play during a lunch break.
Respondeat superior usually applies to daycare owners, school districts, and business owners. Other employer liability theories include negligent supervision and negligent hiring. These theories often apply in assault and other intentional tort claims.
What to Expect
A legal claim begins with a doctor visit. A physician does more than diagnose and treat injuries. These professionals also keep excellent records, which are usually admissible in court to establish the extent of injury.
But there are issues. Many health insurance companies do not cover injury-related medical care. Additionally, even if coverage is available, many victims see general practice doctors who are not accustomed to complex chemical exposure injuries.
A New York personal injury attorney takes care of both these issues. When doctors partner with lawyers, physicians normally agree to defer billing until the case is resolved. So, victims pay nothing upfront. Additionally, the doctor will be someone who focuses on the victim’s kind of injuries. Therefore, victims get more than the treatment they can afford at the time. They get the treatment they need to get better faster.
Once medical treatment is at least substantially complete, attorneys usually send demand letters to insurance companies. These letters outline the victim’s legal claim and demand a certain amount of money to settle it.
If liability is reasonably clear, the insurance company has a legal duty to quickly settle the case. But in many cases, there is at least some question as to liability, so a quick settlement is not possible.
Without a favorable settlement, a New York personal injury attorney must file legal paperwork. Many toxic exposure cases are legally complex, largely because they involve out-of-state conglomerates which own several daycares or other businesses.
Almost immediately, these defendants file motions and try to get the claim thrown out of court. If they take such action, do not panic. A well-prepared attorney usually has no problem keeping your claim alive.
Assuming the claim survives pretrial motions, which it normally does, many New York judges send these matters to mediation. During this alternative dispute resolution forum, a neutral third party, who is usually a retired judge, tried to work out a settlement between the victim and tortfeasor. If both sides negotiate with an open mind and in good faith, mediation is generally successful.
Toxic chemicals easily injure young children and other vulnerable victims. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. You have a limited amount of time to act.