ABA Family Legal Guide

Personal Injury

Strict Liability

Product Liability

A toy my grandson was playing with came apart, and he put one of the pieces in his mouth and started choking. Do we have any redress against the toy manufacturer?

The federal Consumer Product Safety Commission (CPSC) closely monitors such products. Like others that put products into commerce, toy manufacturers have a duty to consider any foreseeable misuse of their products.

You do not have any redress if all your grandson did was gag and spit out the part, with no damage caused. If, on the other hand, he choked and stopped breathing, causing brain damage, then you probably would have an action against the manufacturer. As in any strict liability action, several questions would need to be answered to determine the manufacturer's culpability. Did it have a duty to warn of the danger of the toy falling apart? If so, what was the likelihood that it would break into small parts that could be dangerous to a small child? Was anyone supervising your grandson while he was playing?

Because toy manufacturers outside the United States can be difficult to sue, you also might want to consider suing other parties in the toy's chain of distribution--the toy store, for example, or perhaps a fast-food chain that distributed the toy as part of a promotion. Such retailers also can be liable for injuries.