Bumbo, Wal-Mart Halt Injury Suit Before Trial

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By Martina Barash

Sept. 10 — The maker of the popular Bumbo Seat for babies and retailer Wal-Mart Stores Inc. have defeated a suit brought on behalf of a child whose skull was fractured in an alleged fall from the product.

The child's parents had insufficient grounds to take their design-defect, failure-to-warn and negligence claims to trial, the U.S. District Court for the District of Utah held Sept. 9.

And Wal-Mart qualifies as a passive retailer of the product under Utah law, saving it from strict liability claims, the court said in a decision by Judge Dee Benson.

Skull Fracture 

The case arose from a June 2012 incident in which Linsey and Nicholas Groesbeck's daughter, identified as A.G., fell from a kitchen bar to the floor after being placed in a Bumbo Seat, according to the court. She sustained a skull fracture and subdural hematoma, followed by emergency surgery that involved removing part of her skull.

The parties disputed A.G.'s long-term prognosis, the court said.

The baby seat in question was made by Bumbo International Trust and related company Jonibach Pty. The seat was purchased from Wal-Mart in 2010 and incorporated changes that followed a 2007 voluntary recall—additional warnings to the seat itself and to its leaflet and packaging.

The product the Groesbecks purchased had two warnings on the box and two warnings on the seat. The parties disputed whether the box contained an instruction leaflet with more warnings.

“It is undisputed that the Groesbecks never saw or read any of the warnings that came with the Bumbo Seat until their deposition in this case,” the court said.

Bumbo and Wal-Mart sought summary judgment in their favor.

Passive Retailer 

Wal-Mart argued it was a passive retailer, one that did not participate in the design, manufacture, engineering, testing or assembly of the seat.

But the Groesbecks argued that Wal-Mart had actual knowledge of falls and injuries associated with the seat and thereby lost the protection of the rule.

The court disagreed, saying there was no evidence Wal-Mart knew of any problems with the seats when the Groesbecks purchased their seat, in 2010. Wal-Mart removed the recalled seats from its inventory in 2007, and didn't learn of any new problems with the seats until 2011, the court said.

‘Common Sense.'

The Groesbecks' claims against Bumbo also couldn't proceed to trial, the court said. To show a design defect, they needed to show it was dangerous beyond what “the ordinary and prudent buyer, consumer or user” would contemplate.

The plaintiffs presented expert evidence about the Bumbo Seat's lack of a seat belt and about its marketing, which the expert, Dr. John E. Meyer said instilled “a false sense of security.” They also presented their own experience as an example of consumer expectations.

But it was obvious that the product lacked a seat belt, the court said. “Common sense would tell the ordinary and prudent consumer” that a baby could get out of it, the court said.

And data showed the “vast majority” of owners had either seen a warning about children getting out or had become aware of that risk themselves, the court said.

The court also found Bumbo's warnings adequate.

The Groesbecks' negligence claims also failed, the court said. With no design defect and adequate warnings, “it is unclear to the court what duty could have possibly been breached,” it said.

Attempts to reach attorneys for the parties were unsuccessful.

Bumbo and Bumbo Seat retailers have been unsuccessful or only partially successful in obtaining summary judgment in some other recent cases.

Rose Walker LLP, Cunningham Swaim LLP and Winder Counsel LLP represented the plaintiffs.

Parsons Behle & Latimer, Snow Christensen & Martineau and Brown Sims represented the defendants.

To contact the reporter on this story: Martina S. Barash in Washington at mbarash@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com

The opinion is available at http://www.bloomberglaw.com/public/document/Groesbeck_et_al_v_Bumbo_International_Trust_et_al_Docket_No_113cv