Preventing carbon monoxide deaths and injuries through product liability advocacy for mandatory use of carbon monoxide detectors with interlocks
By Thomas L. Gowen, Esq. Locks Law Firm
Hurricane Sandy left in its wake another
of inhalation because once inhaled, it binds
inexperienced people who rent them in an
reminder about the danger of generators. As
with hemoglobin at roughly 250 times the
emergency situation that has resulted in a
with most significant storms causing power
rate of oxygen, thus displacing this essential
power outage or, otherwise, to support a
outages, the number of deaths and injuries
project or event that requires power where
caused by the use of fossil-fuel-powered
Most, if not all, people seem to appreciate
recognized the lethal impact of generators
the explosive power of fossil fuels, but far
and mandated a more clear warning than had
too many do not understand the potentially
previously been given by manufacturers of
lethal effects in fuel-burning appliances
of the clearest cases of product-generated
devices to minimize risks have not yet been
functions as the delivery system for vital
most importantly the brain and heart, which
Carbon monoxide is caused by the incomplete
the signal word “Danger,” denoting the risk
the body. Damage to the brain, heart and
including natural gas, oil, gasoline, propane
of death or serious injury and a pictorial
and even wood. It is odorless and colorless
warning against using it inside or even close
hypoxic affect of carbon monoxide when it
and can be extremely harmful in very small
to the windows in a house or in a garage.
deprives the vital organs of oxygen from the
quantities relative to the mass of air into
hemoglobin and by the inflammatory effects
This warning should be taken seriously by
which it is emitted. It wreaks havoc with
of endogenous chemicals in the body that
consumers using these devices, but frequently
are triggered by the inhalation of carbon
it is not. Despite the apparent clarity of its
warning language, this statement appears to be misunderstood too often. And frequently,
If the victim is still alive, this effect can cause
the victims are not the people who placed the
delayed neurocognitive deficits even after
generators in service but rather bystanders:
residents of a building where generators are
being used, perhaps unbeknownst to them,
The symptoms of carbon monoxide poisoning
include acutely severe headaches and loss of
For those placing the generators in service,
coordination and balance. Loss of cognition,
the key issue is often the comprehension of
memory loss, severe fatigue, cardiac damage
the words “never use in or near a building.”
and other problems may follow either acute
While the concept of not using a generator
or chronic exposure to carbon monoxide. In
inside a building would appear to be clear,
exposures caused by generators, too often
the issue of what constitutes “near a building”
the end result is death because of the rapid
Thomas Gowen is a partner at the Locks
often is not. Therefore, the retailer renting
rate of carbon monoxide discharge when the
Law Firm in Philadelphia. He has handled
or selling the machine should reinforce the
a significant number of carbon monoxide
generator is operated in or near an occupied
poisoning cases involving heating systems,
generators, water heaters, kitchen stoves
Gasoline-powered generators emit extremely
tgowen@lockslaw.com or at 215-893-3401.
being killed by carbon monoxide poisoning
high levels of carbon monoxide very rapidly.
occurred recently when two men who lived
Compounding this, they are often used by
12 | WESTLAW JOURNAL n PRODUCTS LIABILITY
in apartments above a grocery store were
INTERLOCK FEATURES
poisoned by a gasoline-powered generator
placement into the stream of commerce of
used to replace electrical service to its
a defectively or negligently designed product
safety engineering that it is never enough
can give rise to liability in a product liability
to warn if a product can be guarded, and
nothing to do with the store or the use of the
claim. The failure to prevent or minimize
never enough to guard if the hazard can be
generator, and the warning was either not
the risk of serious injury or death by the use
eliminated altogether, the CPSC recognized
read or understood by the store employees
poisoning is a risk only if diesel fuel is used.
It commissioned a study to determine the
feasibility of providing an interlock system
unwarranted reassurance to the employees,
who rented and placed a gasoline-powered
generator upon accumulation of potentially
generator inside a first-floor store while the
dangerous levels of carbon monoxide.
two men were sleeping in apartments on the
The viability of attaching a detector to a
second floor. The store employees started
generator that would trigger a shutoff switch
the generator and left for the night, suffering
upon the accumulation of hazardous levels
no health effects, but the two apartment
of carbon monoxide was aptly demonstrated
dwellers were found dead in the morning.
U.S. Navy in 2006. The study confirmed the
generator owners also believe they can safely
feasibility of interlocking a carbon monoxide
operate a generator in a garage attached to
sensor to gas-powered generators so that
a house, particularly if they leave the door
usually indoors, are preventable by the use
open. Unfortunately, this is also untrue.
down upon sensing a critical level of carbon
of reasonable safety measures. While the
People using generators, particularly during
storms, fear for the effects of weather on the
on portable generators is an admirable first
generators or are afraid they will be stolen if
an interlock device on portable generators,
step, the potential for harm to people who
left outside. While these may be legitimate,
contending that the use of generators had
were not involved in operating the generator,
increased in the country at a greater pace
or who misunderstood the imperative nature
than the associated death toll. The industry
of the warning or its meaning, justifies the
is vastly greater if the generator is brought
further argued that the mandatory use of
use of interlocks to prevent these tragedies.
carbon monoxide detectors in conjunction
with generator operation would often defeat
all, interlocks are generally well-known
a generator’s power production purpose by
safety devices. Microwave ovens shut off
shutting it down upon recognition of high
automatically when the door is open and cars
will not start unless the gear is in “park.”
functionality of generators justified some
also exist. In most instances, the adoption
of interlock safety technology was resisted
regulatory level, and the improved warning
was the only safety measure that survived
apparent safety of the flat-bottom boat for
the review process, despite the significant
reduced death and injury. The same should
cruising lakes or rivers disguises the carbon
number of foreseeable deaths and injuries
be true for generators, which pose a grave
risk of serious injury or death if operated in or
generators to provide electrical power for the
boat, including the air conditioning, lights
Several layers of safety could be achieved by
generator safety in the United States now
interlocking generators to carbon monoxide
If the generator is not vented through the roof
rests with plaintiffs’ lawyers who recognize
sensors. First, most injuries and deaths
of a boat, but rather is vented out the back
the hazards of these devices, even with the
would be prevented by generator shutdown
or to the side, the unsuspecting cruisers may
improved warnings, and who pursue product
when a given critical load of carbon monoxide
liability claims against manufacturers, sellers
is produced in the area around the generator.
of carbon monoxide under the platform of
and renters of generators, asserting the need
the boat or by blowback into the cabin from
for interlocks to shut down this equipment
Another layer of safety could be achieved
at lower-level exposures, thus affording
MARCH 2013 ■ VOLUME 24 ■ ISSUE 1 | 13
recognize that they are being exposed to carbon monoxide and to vacate the premises or to alert the operator of the need to shut
FISHER-PRICE INFANT SLEEPERS RECALLED OVER MOLD HAZARD
down the generator. At higher levels, the
Fisher-Price is recalling some 800,000 infant sleepers it says can pose respiratory hazards
sensor would be designed to shut down the
to babies from internal mold buildup. The company said it has received 600 reports of such
problems from customers who bought Rock ‘N Play sleepers between September 2009 and
The failure to employ this type of feasible
December 2012. In the Jan. 8 recall notice, Fisher-Price said 16 customers reported that their
infants were treated for respiratory issues, coughs and hives after sleeping in the seat. The
should be considered negligence, and the
company urges customers to check for dark spots under the sleeper’s removable seat cushion,
product should be found to be defective as
which are indications of mold, and contact it at 800-432-5437 for cleaning instructions.
lacking in all measures necessary for its safe use.
FRAME FAILURE PROMPTS RECALL OF SPECIALIZED BICYCLES
The role of the retailer renting or selling
After receiving two customer injury reports, Specialized Bicycle Components Inc. is recalling
12,200 bicycles it says are susceptible to sudden front fork failure. The company issued the
either. Retailers should train sales personnel
recall Jan. 25, saying that owners of 2012 and 2013 model year Tarmac SL4, Crux and Secteur
in the hazards of these devices and require
bicycles should stop using them immediately. Specialized said the bikes should be taken to an
that they provide a detailed explanation of
authorized dealer for a free frame and fork inspection and, if needed, repair or replacement. JOHN DEERE RECALLS GATOR UTILITY VEHICLES OVER FIRE HAZARD
Reasonably prudent conduct by those selling or renting this equipment should include
Deere & Co. is recalling about 4,600 of its popular John Deere “Gator” outdoor recreational
utility vehicles because a fuel line may separate, posing a fire hazard. In a Jan. 10 recall announcement, Deere said the recall applies to its Gator RSX8501 Base, Sport and Trail models
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sold between August and October 2012. The company said three customers have reported fuel-
line separations, none of which were related to injuries. Owners of the suspect units should
contact a John Deere dealer to schedule a free inspection and repair. Added information can be
obtained by calling the company’s customer support line at 800-537-8233. PFIZER TO SETTLE ‘OFF-LABEL’ MARKETING ALLEGATIONS FOR $55 MILLION
certain distance from a building to avoid carbon monoxide poisoning.
The U.S. Justice Department says Pfizer Inc. will pay $55 million to settle claims that its Wyeth
Because these devices pose such a dangerous
subsidiary violated federal law by promoting the heartburn drug Protonix for “off-label” uses
risk of serious injury or death to renters and
between February 2000 and June 2001. The settlement, announced Dec. 12, resolves claims
innocent occupants of a building, it should be
that Wyeth’s sales force intentionally promoted Protonix for treating gastro-esophageal reflux
considered negligence when those setting up
disease diagnosed without endoscopic testing. Justice Department officials said the U.S. Food
generators do not heed the safety warnings.
and Drug Administration, however, only certified Protonix for GERD diagnosed through such testing. Wyeth, which bought Pfizer in 2009, officially denied the allegations made in the
Until interlocked detectors become standard
complaint, the Justice Department said.
equipment on the generators themselves, store policies should also require the rental
United States v. Wyeth LLC, No. 12-12308, complaint and settlement filed (D. Mass. Dec. 12,
or purchase of carbon monoxide detectors to
2012).
be used in conjunction with the generators
Related Court Document:
and require a written sign-off confirming an
understanding of the dangers associated with the use of these devices.
But intermediate measures like these should never be considered sufficient when better remedies such as interlocked carbon monoxide sensors integrated into the generator are feasible and would prevent the loss of life numerous times each year. WJ 14 | WESTLAW JOURNAL n PRODUCTS LIABILITY
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