Products-liability cases involving children

Pitfalls and pathways to a successful case

Few cases tug at a jury’s heartstrings more than those involving children injured by defective products. Yet these cases also present some of the thorniest procedural and substantive challenges in California product-liability litigation. When a child is hurt, questions multiply: How much exposure should the child face in litigation? Can a child be found comparatively at fault? How do courts assess a child’s standard of care? Are the parents or guardians of the child comparatively negligent? And how do federal and industry product safety standards affect the framework of liability?

This article examines these key considerations and offers strategies for plaintiff-side attorneys litigating product liability cases involving children in California. Along the way, it highlights both pitfalls that can undermine a case and the pathways to maximize the likelihood of success for your client.

Comparative fault of a child

Can a child be found negligent?

One of the first considerations in a product liability case involving a young child, is whether, and by what standard, a child can be considered negligent as a matter of law (factual circumstances aside) for their use of a product, and whether that may affect allocation of fault.

California follows a pure comparative-fault system. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.) But applying comparative fault to children is not straightforward. An initial question is whether a child can be deemed negligent in their own right.

California courts have long held that a child is judged not by an adult standard, but by the conduct expected of a reasonable child of like age, intelligence, and experience. (Daun v. Truax (1961) 56 Cal.2d 647, 655; see also CACI 402.) In Daun v. Truax, the plaintiff, a child of five years and eight months of age was hit by a car as she crossed the street walking home from kindergarten. There, the defendant argued that the child was negligent and, under the now-repealed law of contributory negligence, claimed that the plaintiff was not entitled to any recovery.

The trial court instructed the jury on the “ordinary care” required of a pedestrian, including that a pedestrian “before crossing the street, must make observations of traffic conditions, must look in the direction from which traffic is to be expected, and then to make a ‘sensible decision’ whether to cross.” (Id. at 654.)

The California Supreme Court found the instruction erroneous because it sought to apply an adult standard of care to very young children, even in the face of a clarifying, and contradictory instruction later given that instructed the jury on the “child standard” which should apply. As the court stated, “[c]hildren are judged by a special subjective standard and not by the objective standard set forth in the instruction. They are only required to exercise that degree of care expected of children of like age, experience, and intelligence.” (Ibid.) This “child standard” reflects developmental limitations and avoids imposing unrealistic duties on minors.

As a rule, however, very young children cannot be negligent as a matter of law. In Christian v. Goodwin (1961) 188 Cal.App.2d 650, another case where a child ran into the street and was struck by a car, the court considered whether a child of four years and seven months of age could be capable of contributory negligence as a matter of law. The Court found that the “weight of authority in other jurisdictions is opposed to the proposition that a child under five can be guilty of contributory negligence” and adopted such holding, finding that the plaintiff, as a matter of law, did not have “sufficient capacity to be guilty of contributory negligence[.]” (Id. at 655.)

Similar holdings exist nationwide and apply to the products context. The general cutoff is around five or six years old, though the inquiry is fact-specific. (See Gonzales v. Davis (1925) 197 Cal. 256 [holding five-year-old not capable of contributory negligence]; but see Daun v. Truax, supra, 56 Cal.2d at 654 [holding child of five years and eight months subject to “child standard”].)

A subjective standard for a child’s negligence

For children older than five or six years of age, courts are likely to apply the “child standard” articulated in Daun v. Truax and its progeny, and compare the minor plaintiff’s conduct to that of a reasonable child of like age, intelligence, and experience. It is important to reiterate that such standard is a subjective and fact-specific inquiry, which accounts for the specific situation of the minor plaintiff. Therefore, if a child has developmental disabilities, for example, or on the converse, is especially advanced for their age, it will affect the standard by which their conduct will be scrutinized.

For older minors, including those reaching adolescence, courts more readily apply comparative fault. A 16-year-old injured while misusing a consumer product, for example, may be scrutinized much like an adult. But even then, the jury must generally consider the intelligence, experience, and maturity of a like child.

How does comparative fault interact with strict product liability claims?

Once you know whether a child plaintiff, as a matter of law, may be found negligent, and what the standard may be if so, the next question is how that may affect comparative fault and the eventual allocation of fault on the verdict form. Generally, in products-liability cases, comparative-fault defenses are often less compelling, as strict liability focuses on the product, not the conduct of the manufacturer or user. (See e.g., Brown v. Superior Court (1988) 44 Cal.3d 1049.)

The California Supreme Court has held, however, that comparative-fault principles may reduce recovery in strict liability cases, but the defense must show misuse, assumption of risk, or failure to exercise reasonable care – standards tempered when the user is a child. (Daly v. General Motors Corp. (1978) 20 Cal.3d 725.) To the extent a child plaintiff is capable of negligence as a matter of law and their negligence is found a substantial factor in causing their injury, the child’s damages will be reduced by the jury’s determination of their percentage of responsibility. (See CACI 405.)

Keep in mind that product misuse or assumption-of-risk defenses are often weak when asserted against young children, especially when the manufacturer or designer of the product has produced a defective product. Attempting to blame a minor for their own injuries in the face of a product with a clear defect is a risky strategy, with potential to inflame a jury rather than convince them to apportion fault to an injured child. A manufacturer cannot reasonably expect a child to appreciate risks in the same way as an adult, which makes such defenses an uphill battle for defendants. Plaintiff’s counsel must ensure proper jury instructions are included on the standard of care for minors, including CACI 402 where applicable, and should emphasize that standard to limit the risk of comparative apportionment.

Comparative fault of parents

Perhaps the most common defense tactic in a product liability case involving young children is to shift blame from the child to the parents. Defense counsel frequently argue that the injury resulted not from a defective product, but from inadequate supervision, or a parent’s failure to properly instruct their child on the use of the product, or warnings associated with it.

As an initial matter, California law is clear that a parent’s negligence is not imputed to the child. (See e.g., Zarzana v. Neve Drug Co. (1919) 180 Cal. 32, 37 [“the rule of imputed negligence as applied to actions by children in their own right no longer prevails, if it ever did prevail, in this jurisdiction.”]; but see id. at 35 [noting that “where the parent is suing in his own right, the doctrine of imputed negligence applies”].) This principal is critical – defendants cannot “punish” a child for a parent’s supervision failure, and the child’s right to recovery remains intact, regardless of parental fault.

Parental fault, however, may be relevant in determining whether a third party, including the parent, is wholly or partially liable for the injuries. (Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 31 [“a parent’s negligence is not imputable to a child in an action by the child for injuries, although it may be relevant in determining whether a third party is liable for the injuries”].) If there is substantial evidence that a parent’s negligence, as a nonparty, was at fault, and if shown that such negligence was a substantial factor in causing harm, fault may be apportioned to the parents, which will reduce any award ultimately obtained for the minor plaintiff. (CACI 406; see e.g., Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d. 322 [holding apportionment of fault permissible between strictly liable defendants and other responsible tortfeasors]; see also Yamaha Motor Corp. U.S.A. v. Paseman (1990) 219 Cal.App.3d 958.) If defendants fail to file a cross-claim against the parents, or assert comparative fault of a non-party as an affirmative defense prior to time of trial, however, counsel should move to exclude any argument of parental fault, as irrelevant to any claim or defense at-issue.

Children and their use of a product

Attorneys must also keep a lookout for opportunities to eliminate arguments of parental fault when it comes to use or supervision of a product. In certain cases, the defense will often try to characterize their product as safe for children, or child-proof, while also trying to argue that is was unsafe for the child’s parents to leave the child alone with the product. Defense cannot have it both ways. Once the defendant manufacturer admits that a product is safe for kids, plaintiff’s counsel can use that admission to secure a further admission that the defendant manufacturer would not blame the parent for leaving the child alone with the product.

Product advertisements or listings on store websites are also a great source to find material to show that the product, or substantially similar products, are foreseeably used, or even intended to be used by children, which can negate arguments of parental fault for letting the child use the product.

In a recent case we had involving a defective remote control, the defendants asserted that it was not foreseeable that the remote would be used by young children or put in their mouths. Product advertisements for similar products manufactured by defendants showed otherwise, with ads emphasizing the “child-proof” nature of the product, and even photos showing very young children with remotes in their mouth – exactly like the situation involved in the lawsuit we were handling.

”It’s the parents’ fault”

Even where the defendants don’t explicitly blame the parents or argue comparative fault, counsel must also be vigilant of backdoor attempts to shift blame on the parents, and thereby reduce the overall damages awarded. Especially in cases involving children injured while using a product unsupervised, some jurors, even when not argued, will have the inclination to blame the parents and reduce the award. In such situations, it is critical to explore these concepts on voir dire and strike for cause any jurors who seek to improperly backdoor apportion blame on parents, or reduce the award, even when they’re not on the verdict form.

Although some jurors may naturally be sympathetic to parents, other jurors may find compelling the defendant’s arguments that “mom or dad should have been watching.” Counsel must always remind the jury what is at issue here. The case is about the product, not the parenting. A defective crib, toy, or remote must be safe even when parents are momentarily distracted – because the foreseeable user is a child.

Protecting the child in discovery – To allow or limit a minor plaintiff’s deposition

One of the earliest battles in a child-injury case arises when defense counsel notices the child’s deposition. This triggers the strategic decision of whether to allow a minor plaintiff to be deposed, or seek limitation through agreement or protective order. Unlike adults, children are uniquely vulnerable to intimidation, re-traumatization, and suggestive questioning. The law provides tools to protect them.

Protective orders: Under California Code of Civil Procedure section 2025.420, a party may move for a protective order to prevent unwarranted annoyance, embarrassment, or undue burden, subject to a showing of “good cause.” Courts have wide discretion, and “good cause” is especially compelling where the proposed deponent is a minor. Orders may:

Prohibit the deposition altogether. (Code Civ. Proc., § 2025.420(b)(1));

Limit the duration (e.g., to one hour). (Code Civ. Proc., § 2025.420(b)(5));

Limit the questioning to certain matters. (Code Civ. Proc., § 2025.420(b)(9)-(10));

Restrict the location to a comfortable environment, such as the plaintiff counsel’s office or the child’s home. (Code Civ. Proc., § 2025.420(b)(4));

Require the presence of a parent, guardian ad litem, or therapist. (Code Civ. Proc., § 2025.420(b)(5)); or

Substitute alternative discovery methods (such as written interrogatories to the child or parents). (Code Civ. Proc., § 2025.420(b)(7)).

The question of whether to allow a minor plaintiff’s deposition to go forward without limitation, or to attempt to limit, or prevent altogether the deposition from proceeding, is a strategic one. Counsel must consider both the unique condition of their own client (i.e., their capacity to understand questioning, emotional vulnerability, physical and psychological condition, and risk of re-traumatization), as well as the legal repercussions that may accompany such a deposition. Is the deposition one that will go to damages alone? Or is it a scenario where your client is beyond the “tender years,” but still young, and may face argument of contributory negligence for their use of the product?

Based on those considerations, attorneys should formulate a plan early in the litigation on whether they intend to call the child as a witness at trial, which will inform the decision of whether they need to offer the child for deposition, limit the proceeding, or move to prevent it from happening altogether. If the attorney intends to call the child at trial, the child will likely need to be offered for deposition to avoid the risk of exclusion at trial. On the converse, if plaintiffs do not intend to call the child at time of trial and their parents or guardian ad litem may testify to the circumstances of the incident or damages, deposition can often be avoided by agreement with defense counsel that the parents or guardian ad litem will be deposed in exchange for the child not being called.

Counsel should immediately assert any concerns with the deposition of a minor plaintiff with opposing counsel once raised, and seek to reach agreement through meet-and-confer efforts. For a child of a tender age, defense counsel will often agree to reasonable limitation, including limitations on time, subject matter, or question areas submitted ahead of time, rather than appear unreasonable in front of the court with regard to the handling of a minor plaintiff.

If meet-and-confer efforts are unsuccessful, file a motion for a protective order promptly. Support it with declarations from parents, psychologists, or medical providers detailing the potential trauma of deposition, or limited knowledge of the minor plaintiff.

Best practices:

Age and maturity assessment: A deposition may be appropriate for an articulate 14-year-old but not for a traumatized five-year-old.

Preparation and support: If deposition is unavoidable, consider videotaping in a comfortable, non-adversarial setting, and request the presence of a parent or guardian ad litem.

Seek reasonable limitation: Meet and confer to reach reasonable compromise on limited scope, duration, or other protections for the deposition if needed, before turning to the court.

Ultimately, plaintiff’s counsel must balance the child’s well-being against the probative value of their testimony. In many cases, it is both legally justified and strategically wise to seek to limit testimony, whether through agreement, or protective order.

Applicable product standards and safety regulations

Federal standards

In cases involving children, safety regulations, either of an industry group or government agency, may loom large, and be a tool for either the savvy plaintiff lawyer, or defense lawyer to use to their advantage.

The Consumer Product Safety Commission (CPSC), for example, sets mandatory safety standards for a variety of children’s products, including toys, cribs, and car seats. Key examples include:

16 C.F.R. Part 1500: Hazardous substances and labeling requirements.

16 C.F.R. Part 1501: Banning small parts in toys for children under three.

16 C.F.R. Part 1512: Safety standards for bicycles.

16 C.F.R. Part 1220–1221: Crib safety standards.

Compliance with federal standards does not generally immunize product manufacturers or designers from liability. Statutory compliance may be relevant but does not preclude liability where a product is otherwise defective. (See e.g., Hassan v. Ford Motor Co. (1982) 32 Cal.3d 388, 407.) By contrast, non-compliance with federal statute may constitute negligence per se against the defendant designer or manufacturer, or provide support for a design defect under the risk-benefit test.

Industry standards

Industry organizations, such as ASTM International and Underwriter Laboratories (UL) issue voluntary standards regarding safety features across a wide variety of industries. Defendants will often, if allowed, tout their compliance with the voluntary standards of ASTM or UL to suggest that their products are safe or free from defect.

Whether such standards are admissible is a complex legal inquiry that is not covered at length herein, but as a general matter, when certain claims are asserted, including negligent design, manufacture, or warning claims, design defect claims under the risk-benefit test, or punitive damage claims related to the same, evidence of industry standards or compliance may be admissible. For other product liability claims, including manufacturing defect, or design defect under the consumer expectation test, industry standards are generally inadmissible.

Where admissible, if used by defendants to assert that their product was not defective or they are less culpable because they complied with industry standards, plaintiffs should emphasize that the standards and enforcement of such standards are often self-enforcing and self-regulated by industry, and reflect the floor, not the ceiling of safety. Experts can demonstrate how safer, feasible alternatives were available or highlight how the standards may not apply to the specific defect at issue. Expert testimony can further emphasize how a product that merely “checked the regulatory box” still failed to protect children.

Where admissible, if defendants did not comply with relevant industry standards relating to the design or manufacture of a product, such failure may be used to support a design defect claim under the risk-benefit test, to specifically show that a safety feature used in the industry was not utilized for the specific product.

Conclusion

Products-liability cases involving children are uniquely challenging, yet profoundly important. They demand a balance of legal rigor and compassion, of strategic shielding and forceful advocacy. By carefully navigating deposition issues, comparative-fault doctrines, and applicable safety standards, plaintiff’s attorneys can overcome common pitfalls and pave the way for just outcomes.

In the end, these cases are about more than litigation – they are about accountability, safety, and protecting the most vulnerable members of our communities.