Consumer products are manufactured by offshore companies more than ever before. In the wake of this, we now must hook the retailers where these products are sold with liability for selling a defective product. This is especially true in the child safety world. In 2008, a Canadian company by the name of Harmony Juvenile Products created a car seat called the Harmony Youth Booster. This car seat was horribly defective as the design allows the automobile’s lap belt –which must remain low and on the pelvis to provide proper restraint – to change position and slip off the pelvis in an accident. This is what is known as submarine and rollout. Submarining is essentially when the occupant “submarines” under the lap belt which then moves up and into the soft belly area where it can cause spinal cord injuries, among other things.
Harmony was a thinly capitalized closely held company that is very underinsured. The Harmony Youth Booster Seat was imported directly from and sold by Wal-Mart all over the United States. In 2008, Harmony did a presentation to Walmart, where they lied about the safety of their products and falsely claimed that all its products currently passed the European ECE R44/03 and the U.S. FMVSS 213 standards. However, Harmony never gave Wal-Mart any proof to back up those claims. Harmony even sent non-production seats to NHTSA for compliance testing and certified under oath that they were production level seats.
Wal-Mart took all of this at face value and ordered about 100,000 units from Harmony. Wal-Mart did nothing to substantiate anything that Harmony had told them – they never even asked what the Youth Booster was made of. Had they asked, they would have found out that the seat was made from plastic which was supposed to be used only for small and medium bottles that hold food, detergent, beach, cosmetics, and shampoo. Wal-Mart never reviewed any of the testing that supposedly had been performed on the seat. Had they done any digging at all, they would have learned that Bureau Veritas, the third party test lab Wal-Mart was using in Hong Kong to check out the Youth Booster, ran no FMVSS 213 compliance tests of its own and that, in lieu of running such tests, were relying on the assurances of none other than Harmony to tell them the seat supposedly passed the one test it had been subjected to. Wal-Mart never conducted a CMVSS compression test on the Youth Booster.
Not surprisingly, when shampoo bottle plastic is used for a child safety seat test failures are inevitable – and that is precisely what happened. In November 2009, a production Youth Booster was subjected to the CMVSS 213 “compression” test for the first time, and it failed by a very substantial (50%) margin. Numerous follow‐up “compression” tests in late 2009 and early 2010 resulted in more failures. Harmony could have simply increased the weight of the seat by using more plastic to make the Youth Booster a stronger, safer seat. Yet, Harmony deliberately kept the weight low, ensuring more test failures and a clear‐cut violation of CMVSS 213, so the company could save money.
Wal-Mart did conduct one test prior to October 20, 2009. The report from that test stated, among other things, that “the HARMONY seat seems to be unstable and makes me wonder what would happen in a serious car crash.” After receiving this alarming information, neither the senior buyer nor any other Wal-Mart employees or representatives did anything to find out why the tester had concerns about how the Youth Booster would perform in an accident. Instead, the report was forwarded to Harmony for a response.
In response, Harmony claimed that the Youth Booster was exceptionally safe. Wal-Mart did not ask Harmony to provide any documentation to back up this claim. This report was read, acknowledged, and promptly ignored as sales of the seat were fantastic and Wal-Mart was making at least 40% profit margin on each seat it sold. Disregarding obligations and internal standards designed to ensure that only safe products are available for sale on its shelves, Wal-Mart recklessly forged ahead with its plans to get the Youth Booster on the shelves of all 3,600 stores by Christmas 2009.
In 2010 the Mead family purchased a Harmony Youth Booster from their local Wal-Mart store in Palm Beach County Florida. Ms. Mead did extensive research on these seats. Harmony’s website boasted about how safe the Harmony Youth Booster seats were. On June 14, 2010, both of the Mead daughters were sitting in the back of their car driver by their dad. They were properly secured in their Harmony Youth Booster seats when their dad lost control of the vehicle and crashed. As a result of the crash, both girls sustained spinal cord injuries caused by submarining. Both girls were paralyzed.
So, what happens if you purchase a product from a retailer in the US that was manufactured by a company that is either foreign or underinsured/thinly capitalized, and either you or someone you love is injured by that product due to a defective design? Well depending on the type of product, there are several ways to hook the retailer you bought it from for liability.
If the product involves a motor vehicle, or any motor vehicle equipment – such as a car seat – the federal scheme that created and enforced the federal motor vehicle safety standards allows you to bring in a retailer because a retailer that is an “importer” of “motor vehicle equipment” is statutorily deemed to be the product’s manufacturer. 49 U.S.C. §30102(a)(5)(B).
A retailer can also be held accountable under the Consumer Products Safety Act, the importer –the retailer – of the product is equally liable for that product. Under 15 U.S.C.A 2052 (a)(11) the term “manufacturer” means any person who manufactures or imports a consumer product. Under Pennsylvania law, which is governed by the seminar decision in Tincher v. Omega Flex, Inc., the Pennsylvania Supreme Court emphasized that any person or entity engaged in the business of selling a product has a non-delegable duty to provide a product that is free from a defective condition unreasonably dangerous to the consumer or the consumer's property. Tincher v. Omega Flex, Inc., 104 A.3d 328, 383 (2014).
Pennsylvania Courts have imposed strict liability for a defective product on all entities in the chain of distribution. See Bialek v. Pittsburgh Brewing Co., 242 A.2d 231, 236 (Pa. 1966). Comment F to §402A explicitly clarifies the application of strict liability to manufacturers as well as “to any wholesale or retail dealer or distributor” of a product. Restatement (2nd) of Torts, § 402A, cmt. f.
In 2015, the Mead cases went to a summary jury trial which apportioned 75% fault to Wal-Mart and 25% fault to Harmony. The summary jury awarded an eight-figure verdict before assessing punitive damages. After the summary jury trial, Wal-Mart and Harmony settled the cases. As a result of these cases, Harmony re-designed the Youth Booster to eliminate submarining. While no seats with the “old” design were purchased by Wal-Mart after 2016, they had already purchased hundreds of thousands of units prior to this. As such, Wal-Mart continued to sell the “old” version of the Harmony Youth Booster through 2018.
In 2018, the Williford family unknowingly purchased a Youth Booster seat from Wal-Mart with the “old” design. On February 23, 2020, the Williford’s six-year-old daughter died in a collision when her Youth Booster allowed her to submarine and suffer an internal decapitation. Litigation was filed in 2021 and after two years of fighting, Wal-Mart and Harmony settled this case and finally took the Youth Booster off the shelves across America.
