Q: 8 year old Gorilla playset collapsed on my Granddaughter causing severe injury. Do I have a case.

A: I’m very sorry for the serious injuries suffered by your grandchildren. Both the manufacturer and installer can be held liable, and possibly strictly liable, for your grandchildren’s injuries under product liability, negligence, and possibly breach of warranty theories.

Proving liability on the part of a defendant in a product liability case depends on meeting several factors which tend to show that the product was unreasonably dangerous when it was sold and installed and that it failed to meet what is known as the consumer expectation test (including that the product did not perform in a safe manner as would be expected by the ordinary consumer). These legal factors are set forth in the case, Jablonsky v Ford. https://law.justia.com/cases/illinois/supreme-court/2011/110096.html

In terms of timing, because your granddaughter is a minor, the statute of limitations does not pose an immediate concern; however, the approaching statute of repose does present a concern which should be addressed promptly. The statute of repose will cut off your rights to pursue litigation, regardless of the date of discovery, 10 years after you purchased the product. The statute of repose bars claims against manufacturers 10 years after the first sale, lease, or delivery of possession of the product to its initial user or consumer.

Another fact to concern yourself with is how long the product sat on the shelf at the retailer before you purchased it. The statute of repose in Illinois bars your right to bring a claim for a defective product 12 years after the first sale, lease, or delivery of possession of the product by a seller, including the manufacturer. In your question, you indicate that the product was purchased and installed appropriately Eight years ago; therefore, it will be important to investigate how long the product was in the hands of the retailer before it was sold to you and installed. Because there are technical issues arising from both the statute of limitations and the statute of repose, I urge you to consult with counsel regarding these important deadlines as soon as possible.

In terms of the damages you are entitled to recover, your grandchildren are entitled to pursue a lawsuit for damages which include medical bills, pain and suffering and loss of normal life.

Because this is a product liability case, it is essential that you retain the equipment in question. Do not alter the Playset, and be certain that it is preserved in its present condition until it can be examined by experts. It is also advisable to take a series of photographs to document the condition of the playset that as soon as possible, if you have not already done so.

Product liability litigation is highly technical and it is advisable to consult with knowledgeable counsel. There are industry experts, including engineers, who will need to review the product in order to pursue the case on behalf of your grandchildren. Experts will be needed by offer opinions that the product was unreasonably dangerous when its was manufactured or installed. An experienced product liability attorney will be able to consult with leading experts, preserve evidence, and advise you of the best legal strategy going forward.

If I can be of any further assistance, please do not hesitate to contact me or any other member of my team. John Malm