10-year-old Burn Victim & Family Get $6 million Partial Settlement

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May 5, 2008

The manufacturer of costumes for children and the licensor of the movie-based character for the costume have agreed to pay $6 million to a 10-year-old boy, and his family, who was severely burned when his Halloween costume burst into flames on Halloween in 2004.

Certain details of the partial settlement, reached by Koskoff Attorneys Richard Bieder, William Bloss and Neal DeYoung, remain confidential. However, the claims against the manufacturer, as well as the licensor, were brought under the Connecticut Product Liability Act.

One of the arguments pressed by the defendants was that the lawsuit should be dismissed because of the preemption provision contained in the Federal Flammable Fabrics Act. Koskoff attorneys maintained that the Act’s preemption provision was not intended to preempt private civil claims and that the Act was intended to provide only a minimum flammability standard for apparel products. Under the Act’s regulatory requirements, certain six-inch strips from the garment are required to burn for at least 3.5 seconds under the specified conditions. Koskoff lawyers also claimed that the particular costume worn by the child fell outside the scope of the Act due to its design.

The Flammable Fabrics Act was initially passed by Congress in 1953 to regulate the manufacture of highly flammable clothing after a greatly publicized series of burn accidents involving brushed high pile rayon sweaters (known as “torch sweaters”) and children's cowboy chaps. The Act’s requirements now are enforced by the U.S. Consumer Product Safety Commission (CPSC).

In the early 1970’s, the Act’s regulations were amended to apply much more stringent flame resistance standards to children’s sleepwear garments. However, in 1996, the Act’s regulations were again amended to permit the sale of tight-fitting, non-flame resistant sleepwear to children above the age of nine months.

According to fire injury data from the CPSC, each year more than 4,000 consumers suffer severe burn injuries and an estimated 150 or more die when their clothing ignites from even minimal exposure to ordinary household ignition sources. In most cases, these clothing and apparel items had met the requirements of the federal standard for the flammability of clothing textiles

This case was mediated and settled by the parties close to the start of trial. The Plaintiffs retained not only flammability experts but also fabric design specialists to help solidify their case. Plaintiffs’ fabric design specialists actually re-constructed the plaintiff’s costume using flame resistant materials. A related lawsuit with the owner of the premises where the incident occurred was amicably resolved by Koskoff attorneys in 2006.