A judge in Rockford, Illinois, last month approved a $9,000,000 settlement to compensate for brain injuries sustained by a boy, then 4 years-old, who was trapped under a garage door. The young man likely activated the wall switch of the garage door operator and tried to exit the garage. Before he was able to leave the garage, the door contacted him and pinned him to the ground. The “contact” safety reverse system that was supplied with the garage door operator failed to reverse the door, and he was asphyxiated for 5 or more minutes before his mother found him. Paramedics worked to resuscitate the child for 45 minutes before a heart rate could be restored. As a result of the asphyxial event, the child suffered massive brain injuries. He requires custodial care for the rest of his life.
The event occurred in May 2005. The family retained Jeremy Bergstrom, a Rockford, Illinois lawyer who did the initial investigation of the case and served as co-counsel after he retained Bruce Pfaff of Pfaff & Gill, Chicago, Illinois, to take the lead in the case. Pfaff and his firm concentrate in representing people in product liability and other serious injury occurrences (www.pfaffgill.com). They filed the case in 2006 against the company responsible for the design of the garage door operator, claiming it was unsafe in its design, causing these injuries. The case settled in April 2009, and the settlement was approved the following month by the judge overseeing the case. The defendant and its insurers paid $9,000,000 to settle all claims made.
Plaintiffs’ lawyers uncovered many unpleasant truths about the garage door operator industry during the investigation. While consumers in America take for granted the electric eye safety systems (classified as “non-contact” safety reverse systems), those have only been required in garage door operators sold since January 1, 1993. “The ‘non-contact’ safety systems are clearly preferable to the ‘contact’ safety reverse systems that were sold on almost every garage door operator in America before 1993,” according to Pfaff. In order to function, the “contact” safety reverse equipped door had to strike an obstruction, such as a child, sense that it struck an obstruction, and then, it should reverse. “There were three recognized failure modes for the ‘contact’ reverse systems uncovered in our discovery,” Pfaff said. One of them was operable in this case: if the garage floor settles, the door operator may complete its cycle before the obstruction is sensed by the door operator, and the door will crush the obstruction and not reverse. That is what happened in this case, leading the door to exert approximately 280 lbs. of downward force on the child as he lay under it. The downward force of the door not only entrapped the boy, but it prevented his lungs from expanding, asphyxiating him.
The garage door operator industry in the 1980s was well aware of these risks. The two leading companies in the industry during the 1980s were Chamberlain and Genie. Starting in 1981, Chamberlain began to offer a “non-contact” reverse system, an electric eye similar to those in current use, as an option for its garage door openers. Few consumers bought them because the company charged $30-50 extra for this feature. Genie followed suit in 1986, offering its version of an electric eye safety system as an option. Genie’s experience was similar to that of Chamberlain: few consumers bought them because of the added $50 charge and inadequate marketing and disclosure of the risks of entrapment. Pfaff believes that had those risks adequately been conveyed to consumers, reasonable consumers would have clamored for the electric eye safety devices.
The way to enhance safety of products is not to offer safety devices as an expensive option. Genie and Chamberlain were both aware that less than 5% of their consumers purchased the non-contact safety reverse device during the 1980s. They should have known that their garage door openers would predictably kill and maim children without those safety devices. Nevertheless, safety was offered only as a high cost option.
What changed this?
Extensive, bad publicity for the industry arrived in June of 1989. That month, Katie Fritz was killed in St. Paul, MN when the Genie garage door opener in her family’s home entrapped her. It had a “non-contact” safety reverse system that failed to protect her due to the disconnection of a wire essential to the functioning of the “non-contact” safety device. The door operator was not equipped with an optional electric eye safety system. This was one of more than 200 similar incidents that Pfaff and his office uncovered in their investigation. What made this one different were the actions of Katie’s mother and her lawyer, Shawn Barch of St. Paul, MN. “Ms. Barch did more for garage door operator safety in America than any other lawyer,” Pfaff said. Aside from bringing to public attention through many interviews in the public media the horrifying events of the Fritz occurrence and what could have been done to prevent it, Ms. Fritz worked with the Minnesota legislature to pass a garage door operator safety statute. It was the first such statute in the country. While it did not mandate electric eye safety systems, it enlightened many legislators and consumer safety advocates around the country to garage door operator safety deficiencies. Other states began to discuss statutes, and naturally, the proposals across the country were not uniform. This lack of uniformity in proposed regulations is what energized the garage door operator industry to arrive at a conclusion they should have reached years earlier: the industry leaders, Genie and Chamberlain, in 1990 fully embraced the idea of a mandatory national standard for garage door operator safety that would include a requirement that garage door operators would have non-contact safety reverse systems.
Federal legislation to accomplish this was proposed in the spring of 1990 and it was passed. Unfortunately for consumers, the law required garage door operators to sell products with the preferred safety systems beginning on or after January 1, 1993. While that lead time may have been convenient for the manufacturers, it continued to expose consumers to unsafe garage door openers in the intervening years.
In the Rockford case, the garage door operator was manufactured in December 1990 and installed the next year. The homeowner at the time was deceased by the time of the May 2005 event, so it is not known whether that person was ever offered the optional safety device. We do know that he did not purchase it. The suit alleged that the manufacturer of the garage door opener was fully aware of the benefits of “non-contact” safety reverse systems in December of 1990, yet negligently choose to supply their garage door operators without those devices. “It was clear from the depositions of past employees of this manufacturer that they choose not to equip all of their garage door operators with ‘non-contact’ safety devices because they were afraid of losing sales,” Pfaff indicated.
This photograph shows how the garage door in question crushed a container of antifreeze when testing by a government investigator after the occurrence:
If the contact reverse system had functioned as intended, the door would have reversed and not stayed down as it did in this picture and on the day of the occurrence. If there had been a “non-contact” reversing system, once the obstruction broke the beam of the electric eye, the door would have reversed and not caused injury.
Because of a quirk in Illinois law, due to the age of the product, plaintiffs could not pursue a strict liability claim against the manufacturer of the garage door operator – they were limited to negligent design theory. Plaintiffs were prepared to prove that the industry as a whole was negligent in 1990, following the precedent of In Re Hooper, 60 F.2d 737 (1932). Illinois adopted In Re Hooper in the landmark decision of Darling v. Charleston Memorial Hospital, 33 Ill.2d 326 (1965), and it remains a very potent theory in negligent product design cases.
The Rockford case was fully prepared for trial and settled as a result of a day-long mediation with Howard Priess of Naperville, Illinois. Mr. Priess had a long career as a prominent lawyer defending and prosecuting injury cases in Illinois before his recent retirement and assumption of mediator duties, Pfaff said. Mr. Priess had credibility on both sides as he had litigated cases with all of the participants in the mediation. Without Mr. Priess’s involvement, the case would likely have been tried.
For further information concerning garage door operator safety issues, contact Bruce Pfaff at (312) 828-9666 or through our website at www.pfaffgill.com