In June of 2013, the Court of Appeals of Kentucky issued a ruling with regard to a personal injury failure to warn case. (See McCarthy v. Ritescreen Co. Inc., 2013 WL 2660783 (Ky.App. 2013)). The Kentucky Personal Injury Failure to Warn attorney for the plaintiff had to file many motions and oppose many motions to keep this case viable.
In this case unfortunately a two-year-old boy fell threw an open window through the window screen on to the concrete below and died. There was no warning on the screen alerting users that it was not intended to support the weight of a child and would not prevent a fall through an open window. Id. Other windows in the building did have such a label, which cautioned, “Screen will not stop child from falling out window. Keep child away from open window.” Id. This was a main argument for Plaintiff’s Kentucky Personal Injury Failure to Warn attorney.
The child’s parents brought a wrongful death action against the manufacturer of the window, and the owners and managers of the building. Id. Plaintiff’s Kentucky personal injury failure to warn attorney was able to amend the complaint once to add Ritescreen. Ritescreen filed a motion to dismiss itself from the case. The circuit court eventually dismissed all claims against Ritescreen. Id. This appeal followed as it pertains to the dismissal of the plaintiff’s claim of negligent failure to warn, and their claim that the design of the screen was defective. Id.
The appellate court spent a lot of time discussing the difference between a motion to dismiss and a motion for summary judgment. Then the court looked at why the lower court dismissed the claims. The lower court dismissed the Kentucky personal injury claims because the defendant did not owe a duty to warn of the danger that the child sustained and it owed no duty to manufacture a screen that would have prevented the fall.
“Kentucky law imposes a general duty on manufacturers and suppliers to warn of dangers known to them but not known to person whose use of the product can reasonably be anticipated.” (cites omitted). The defendant Kentucky personal injury attorney was able to persuade the court that the risk was obvious. Id. There is no duty to warn of an obvious risk. Id.
Next, as to the design defect, the law imposes a duty “to design a product that is reasonably safe for its intended and foreseeable use.” (cites omitted). The intended use of a screen is to allow sunlight and air through a window while keeping insects out. Id. The Kentucky plaintiff’s personal injury complaint does not allege any other purpose or that a foreseeable purpose was to restrain children from falling through windows. Id. “A reasonable person does not use insect screens for the purpose of restraining children.” Id. “In short, the screen was not a product of defective design for its design did not render the screen unreasonably dangerous; only its misuse did.” Id. Accordingly, the court upheld the lower court’s rulings.
If you have been the subject of a Kentucky Personal Injury Failure to Warn Case, please call and speak to a Kentucky Personal Injury Failure to Warn Case attorney at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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