| Catskill,
N. Y.
A $2.2 million settlement agreement was
approved yesterday in a Greene County stove-tipping
case where a 7-year-old child was drenched
with boiling water and severely burned.
Supreme
Court Justice George Cobb approved the settlement
between White Consolidated Industries and
the family of Nicole Germond. The settlement
includes an up-front cost of $1 million,
with a total of $2.2 million to be paid
over 24 years, according to plaintiff's
attorney Jonathan Fairbanks, of Zwiebel
& Fairbanks in Kingston. Mr. Fairbanks
said the case illustrates the dangers, and
liabilities, that can arise when an electric
stove is not equipped with an anti-tipping
device.
Yesterday's
agreement stemmed from an incident that
occurred on March 27, 1996, in the Greene
County town of Hunter. Mr. Fairbanks said
Merry Germond was boiling macaroni on the
rear burners of her stove when she needed
to momentarily leave the kitchen. After
Mrs. Germond turned off the stove and left
the room, her 16-month-old son, Corey, came
into the kitchen and opened the oven door.
When Corey's 7-year-old sister, Nicole,
attempted to pull the toddler away from
the stove, both children fell on the open
door. The stove tipped and a cascade of
boiling water came down, primarily on Nicole.
The suffered burns that required surgery
at Shriners Hospital in Boston, and was
left with a 14-by-14 inch scar, Mr. Fairbanks
said. Corey, who was sheltered beneath his
sister, was uninjured.
The
case settled on the brink of trial when
attorneys were preparing to begin jury selection.
White
Consolidated Industries (WCI) of Cleveland
produces a variety of appliances under such
brand names as Sears-Kenmore, Frigidare,
Gibson, Tappan, Kelvinator and White-Westinghouse.
It has been owned since 1986 by AB Electrolux,
the world's largest producer of household
appliances.
Although
the company had been sued on several occasions
for range sued on several occasions for
range tip-overs, it generally maintained
that such accidents resulted from misuse,
and that its products were adequately designed
for reasonably foreseeable use, according
to Mr. Fairbanks.
Mr.
Fairbanks theory of the case centered on
general product liability, design defect
and lack-of-warning principles. He said
the company acknowledged that it was aware
as early as 1970 of the danger of range
tip-overs and that a remedy was readily
and inexpensively available. In addition,
he also pleaded that between 1980, the date
the stove in this case was manufactured,
and 1996, the date of the accident, WCI
was under a continuing duty to recall, retrofit
and warn.
A
partial confidentiality provision prohibits
Mr. Fairbanks from disclosing discovery
materials to other lawyers. However, Mr.
Fairbanks insisted on retaining the autonomy
to discuss the general history of the range-tipping
problem and how it has been addressed, or
not addressed, in the industry and by WCI.
Mr.
Fairbanks said that starting in 1968 WCI
had a design engineer on board who was aware
of the hazard and who had testified in Ritter
v. American Motors, a reported Rhode Island
Supreme Court case. American Motors had
previously owned Kelvinator, a stove manufacturer,
which had been purchased by WCI.
That
case was strikingly similar to Mr. Fairbanks'
and his position was that the firm was on
notice of the problem at least by 1970.
Tipping
Prevented
Up
until 1990, the prevailing safety standard
was 75 pounds on the center line of a stove
door. The standard was designed to prevent
tipping when, for instance, a large item
like a turkey or roast was placed on the
door.
In
1990, Underwriter Laboratories published
a new standard effective the following year.
The new standard mandated a 250 pound tip
level. WCI, like other manufacturers, began
using a u-shaped bracket bolted to the floor
and connected to the oven to satisfy the
UL standard.
However,
Mr. Fairbanks contends that WCI was aware
of the hazard well before Underwriter's
Laboratories increased standards, as evidenced
by the Rhode Island case and the fact that
it had been sued on several occasions for
stove-tipping incidents involving appliances
marketed by Sears. Mr. Fairbanks said that
Sears,in the mid 1980's adopted a policy
that directed repair workers to inspect
stoves-their own as well as stoves sold
by other companies-whenever they made a
service call on any appliance, and offer
to install a bracket for $3, according to
Mr. Fairbanks.
"White
Consolidated Industries was fully aware
of the program and had no involvement in
it, nor did they do anything to piggyback
on or expand the program," Mr. Fairbanks
said.
Mr.
Fairbanks said the tipping problem is fairly
widespread. He cited a 1998 peer-reviewed
article by three physicians in the Journal
of Burn Care & Rehabilitation, a publication
of the American Burn Association. According
to that article, electric stoves that are
not secured to the floor or wall represent
a significant safety hazard, particularly
to small children.
The
article noted that, during a two-year period
in the Augusta, Ga. area, eight patients
were burned as a result of stove-tipping
incidents, seven of them children between
the ages of 2 and 4. Gas stoves present
less of a hazard because they are typically
connected to the floor or wall by a metal
gas line.
Neither
the counsel for WCI, Douglas J. Palandech
of Clausen Miller PC in Chicago, nor the
company's communications office, returned
calls for comment yesterday.
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