The Trial Lawyer Fall 2017 - Page 42

As a property owner, it is imperative that preventative maintenance and inspections be performed to properly maintain the property and identify possible signs of CO problems. The failure to do so can often constitute a breach of the applicable duty of care. In most jurisdictions this duty is non- delegable, meaning that the owner of the property cannot absolve itself of responsibility by contracting out the performance of that duty. Duties can also arise out of various codes, including state building codes, the International Fire Code, the International Building Code, the International Code Council, the International Mechanical Code, and the International Residential Code, various standards, including ANSI (American National Standards) NEMA (National Electrical Manufacturers Association), and statutes. Because one of the best safeguards against CO poisoning is a CO alarm, the failure to install a carbon monoxide detector can also provide a key element to a negligence claim. As of January 2017, 32 states have enacted statutes regarding CO detectors, and another 11 have promulgated regulations on 40 x The Trial Lawyer CO detectors. Twenty-seven states and the District of Columbia have enacted statutes requiring carbon monoxide detectors in private dwellings via state statute while 11 states require carbon monoxide detectors in private dwellings. Surprisingly, only California, Connecticut, Illinois, Maine and Maryland require carbon monoxide detectors in school buildings and only 13 states require installation of carbon monoxide detectors in hotels and motels under statute. B. Keyless Ignition Cases There has been a sharp increase in product liability CO cases involving automobiles over the past several years. This increase is due in large part to the advent of keyless ignition systems. While push-to-start features and so-called “smartkeys” were touted as technological improvements, they also created a new hazard: vehicles being inadvertently left on after the driver exits the vehicle. When this happens, a car may be left running overnight in a garage, spewing out toxic CO-ridden exhaust, which can then migrate into the house and poison the family members inside. Since their introduction into the marketplace, keyless ignition systems have been connected to at least 20 deaths and 45 severe injuries and illnesses. And those are just the ones that have been reported — formal statistics are not compiled on this issue, so the real numbers are possibly much higher. The fundamental problem with many push-button ignition systems is that they do not account for basic human factors principles. While the driver must have the key fob on or nearby to start the car, the fob can be taken away from the vehicle without the vehicle shutting off. This has proven to be a recipe for disaster — so much so that the National Highway Traffic Safety Administration (“NHTSA”) previously called keyless ignition systems “a clear safety problem,” and even launched a probe into the issue. Unfortunately, as is too often the case, the agency unceremoniously ended the probe behind closed doors, failing to take any action to protect consumers. Sadly, NHTSA’s failure to take action means that automakers will continue to push keyless ignition systems out onto the market without incorporating critical