Ewe have to be kidding me: Bo Peep and Burning "Sheep" Sue Johnson and Johnson for Product Liability
photo adapted from “Mary's Lamb” by Playingwithbrushes which is licensed under a Creative Commons Attribution 2.0 Generic License
What would Halloween (or a Halloween-themed blog series) be without costumes? I have friends who, to this day, take the entire year to come up with some of the most impressive and painstakingly detailed getups I’ve ever seen. I, for one, was never an active crafter, so my options were (sadly) always store-bought.
My crafty costuming connoisseurs out there will appreciate a story about one Halloween costume project that went horribly, horribly wrong. One so wrong, in fact, that it ended with a products liability lawsuit.
Our story takes us back to the early 1980’s. Frank and Sue Ferlito, a husband and wife, dressed up as the famous fairytale duo: Little Bo Peep and her sheep*. For the sheep costume, Mrs. Ferlito put her DIY skills to work using long underwear, Elmer’s Glue, and cotton batting (manufactured by Johnson and Johnson) to make the costume. According to the opinion, Mr. Ferlito was head-to-toe in the cotton batting:
At the party, Mr. Ferlito was ‘itching’ for a cigarette. He and his wife left the party, and in a few clicks of a butane lighter, the flame accidentally caught the cotton batting on Mr. Ferlito’s sleeve. In seconds, the lamb costume was on fire. By the time they could put the costume out, Mr. Ferlito suffered burns that covered almost one-third of his body. According to the appeal, Mr. Ferlito underwent several surgeries to correct the damage from the fire.
After such a horrific happenstance, Bo Peep and her Sheep decided to sue Johnson and Johnson for products liability. Their claim? That Johnson and Johnson failed to warn them on the packaging that the cotton batting was as flammable as they discovered at the Halloween party. (Yes, really.)
In the original case, a jury awarded the Ferlitos $620,000 ($550,000 for Mr. Ferlito, and $70,000 for Mrs. Ferlito, respectively). Shortly after, a new trial was ordered, and the district court set aside the large sum. On appeal, the Sixth Circuit was still not convinced, and the case was extinguished. The couple could not prove that a flammability warning on the package for the cotton batting would have changed their actions on that fateful night. Unfortunately for the couple, with products liability, this was a critical component of winning the case.
According to the opinion, “[Mr. Ferlito] knew that cotton batting burned but emphasized that he did not know ‘how it burned’. His wife, who made the costume, also knew that cotton could burn, “[b]ut not burn that fast.” Additionally, Mr. Ferlito admitted that he ignored warning labels on his cigarettes, and was distracted by others in Halloween costumes outside when he went to light his cigarette.
In the end, the court didn’t decide whether a warning label was needed on the cotton batting and saved that question for another day. In this instance, the risk was obvious by the characteristics of the product.
So, creative costume crafters: be careful this Halloween!
Stay tuned for more exciting #LAWctober posts every Friday during the month of October! If you’re just joining us now, check out my earlier posts below:
- Jealousy. Murder. Siri?-- http://goo.gl/ziGl00
- The Devil Made Me Sue It!-- http://goo.gl/1eMMI7
*There is actually conflicting information in the original opinion and the appeal. The original opinion reports that the couple was “Mary and her little lamb,” on appeal…”Little Bo Peep and her Sheep.” Take your pick.