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From Products Liability Law Daily, January 21, 2014

Maker of CROCS had no duty to warn that escalators posed enhanced risks to wearers

By Pamela C. Maloney, J.D.

The mother of a child who was injured when her soft-soled resin sandals were caught in an escalator failed to provide sufficient evidence that the shoe created an increased risk of escalator entrapment to give rise to a duty to warn on the part of the manufacture, the U.S. Court of Appeals for the First Circuit held (Geshke v. CROCS, Inc., January 17, 2014, Selya, B.).

Background. A nine-year-old girl’s right foot became entrapped in the side of a moving escalator as she and her family were riding the moving stairway at the Aquarium Station of the Massachusetts Bay Transportation Authority. The girl sustained injuries to her foot before she could be pulled free from the escalator. At the time of the accident, the girl had been wearing sandals made by CROCS, Inc. CROCS, as the shoes are commonly called, are a type of soft-soled resin clog. The girl’s mother filed an action against the manufacturer of the clog alleging negligent design, failure to warn, and breach of an implied warranty of merchantability. These allegations were based on the mother’s claims that (1) CROC sandals are prone to becoming entrapped in escalators; (2) the manufacturer knew of this risk; and (3) the manufacturer failed to redesign the product or to provide adequate warnings. The district court granted summary judgment and the mother appealed but only as to her claims for failure to warn and breach of implied warranty.

Duty to warn. Massachusetts law gives rise to a duty to warn only where there is “some reason to suppose a warning is needed.” A warning is needed only if there is some dangerous aspect of the product against which the warning might act to mitigate risk. According to the court, the mother was required to show that CROCS posed a heightened risk of escalator entrapment. The mother argued that the manufacturer’s incident reports on escalator entrapments; a Japanese study chronicling the results of side-by-side escalator entrapment testing of resin sandals; and an escalator safety warning added to the manufacturer’s hangtags were sufficient to satisfy her burden of proof.

The court found that none of these “evidentiary pillars,” alone or in combination, was adequate to support the conclusion that CROCS presented a heightened risk of injury on escalators. With regard to the incident reports maintained by the manufacturer, the court explained that the meager anecdotal history shed no light on whether the numbers of complaints received by the manufacturer were atypical in the shoe industry. The Japanese report had been rejected as unreliable by the district court and the mother did not challenge that finding. Finally, the generalized warning on the hangtag made no mention of any special danger posed by CROCS, but only mentioned escalator safety in general terms. It could not be inferred from the warning that CROCS either presented a heightened risk of danger on escalators or were more prone to escalator mishaps than other footwear. Because the mother failed to present evidence from which a jury could infer that CROCS presented a heightened risk of escalator entrapment, the appellate court affirmed the lower court’s grant of summary judgment on both the failure-to-warn and breach of implied warranty of merchantability claims.

The case number is 12-2204.

Attorneys: Patricia A. DeJuneas (Sibbison &DeJuneas) for Nancy Geshke. Julie M. Walker (McElroy, Deutsch, Mulvaney & Carpenter, LLP) for CROCS, Inc.

Companies: CROCS, Inc.

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