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A federal judge has dismissed a products liability suit brought by a man who seriously injured his eye when the elastic cord on the hood of his jacket recoiled and he was struck by the plastic cord lock. “This court assumes that the average ordinary consumer is well acquainted with the propensity of all manner of elastic items to recoil after they have been extended and released,” U.S. District Judge Robert F. Kelly wrote in his 20-page opinion in Epler v. Jansport Inc. “Because of the obviousness of the danger of recoil, a warning to that effect is not required. Because the recoil danger is well known by the public, the user would be aware of the danger and how to avoid that danger,” Kelly wrote. “A user could avoid the dangers associated with the elasticized cord and cord locks by being mindful of the propensity of elastic cords to recoil and by exercising care by not pulling forcefully on such a cord in the vicinity of the user’s face,” he wrote. After conducting a risk/utility analysis, Kelly found as a matter of law that the “Ranier” jacket manufactured by Jansport is not “unreasonably dangerous.” As a result, he said, the company cannot be sued for strict liability for an injury that results from the product. That ruling also led to the dismissal of Lee Epler’s other two claims — negligence and breach of implied warranty. According to the suit, Epler donned his Ranier on Dec. 18, 1998, and went outside to walk his dog and mail a letter. He had worn it five or six times before. While outside, the wind suddenly picked up and it began to snow, resulting in a small squall. Epler turned his back to the wind and then zipped up the jacket. He then bent down and flipped up the hood while at the same time grabbing the hood’s draw cords. The draw cord slipped out of Epler’s hand and recoiled towards his face. As a result, the plastic cord lock at the end of the cord struck him in his left eye, damaging his optic nerve and permanently impairing his vision. Epler’s lawyer, Richard M. Jurewicz of Galfand Berger, argued that Jansport could have used any one of five alternative designs for a hood closure that would not impair the usefulness of the jacket or make it too expensive to maintain its utility. But Jansport’s lawyer, Lisa M. Salazar of Hoyle Morris & Kerr, argued that the proposed alternative designs would impair the usefulness of the jacket and would create their own safety hazards due to the reduced visibility they would cause. Judge Kelly sided with the plaintiff on that point, finding that one of the designs — which called for the loose ends of the cords to be sewn into the jacket — would not be too expensive or impair the jacket’s function. But on nearly every other factor in the risk/utility analysis, Kelly sided with the defense. Salazar argued that the jacket does not pose any unusual risk of injury. Jansport, she said, has sold more than 78,000 jackets since 1997 that included an elasticized draw cord and cord locks similar to those incorporated in the Ranier, and Epler’s was the first lawsuit ever. Kelly found that the dearth of injuries weighed in favor of finding that the jacket is not dangerous. “One accident arising from one unit out of 78,333 units shows a low likelihood of injury. Simply because some injuries may occur does not mean that a product is defective,” he wrote. Salazar also argued that the usefulness and desirability of a jacket with an adjustable hood for keeping the elements at bay is “self-evident.” Jurewicz agreed, but said the court’s focus when weighing the usefulness and desirability of the product should not be on the jacket as a whole, but only on the usefulness and desirability of the elasticized draw cord and cord locks. Kelly disagreed, saying, “This court has been unable to find any case law that supports plaintiff’s position. Rather, the case law found by this court implies that this first risk/utility analysis factor concerns the utility of the product as a whole, not simply the utility of one particular piece of the product.” As a result, Kelly said, “we agree with the defendants that a jacket with an adjustable hood, such as Jansport’s Ranier jacket, is useful, desirable, and has great utility to the user and to the public as a whole.” But Jansport won the case on the fifth and sixth prongs of the risk/utility analysis, which focus on “the user’s ability to avoid danger by the exercise of care” and “the user’s anticipated awareness of the dangers inherent in the product and their avoidability.” Having declared that the jacket was not unreasonably dangerous, Kelly dismissed the claim of strict liability. He also found that the other two claims — negligence and breach of implied warranties — failed for the same reasons. Because the risk of recoil was obvious, there was no negligence by the defendants for failure to warn purchasers that the cord had elastic properties which could cause it to recoil if stretched and released,” Kelly wrote. And “in the absence of a defect,” Kelly said, “plaintiff’s claim for breach of implied warranties fails.” As a matter of law, Kelly said, the Ranier jacket and the elasticized cord hood closure “are fit for the ordinary purposes for which they are used: the jacket protected its wearer from the elements and the cords properly allowed for adjustments of the hood.” Although there are alternative styles of hood closures, Kelly said, “this style comprising an elasticized cord and cord locks is commonly used and accepted.”

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