Subrogation & Recovery Alert
Hoverboards are literally the hottest toy on the market this holiday season. Hoverboards are not only burning consumers’ pocket books and toy stores shelves, they are also bursting into flames. In fact, they are now suspected to be the root cause of 11 fires in 10 different states. The Consumer Product Safety Commission (CPSC) has launched an intensive investigation into this popular consumer toy. CPSC chairman Elliot F. Kaye advised that “CPSC field investigators are actively investigating hoverboard-related fires across the country and will open new cases as they come to their attention.” (Read the full statement from the U.S. CPSC Chairman Elliot F. Kaye on the safety of hoverboards here). Specifically, the CPSC is investigating why some models caught fire during the charging stage and why others caught fire while in use.
The CPSC’s investigation is focused on the power source of the hoverboards, lithium-ion batteries. These products have already been identified as a fire risk and banned by a number of airlines such as Delta, United, Southwest, Jet Blue and American. The current CPSC investigation is complicated by the fact that many hoverboard manufacturers are not in compliance with the applicable UL testing standards for lithium-ion batteries. It is believed that the hoverboards are catching fire as a result of defective batteries and plugs. Most recently, on December 16, 2015, the National Fire Protection Association (NFPA) issued a statement about hoverboard fires, advising that “some of the fires have involved the Lithium-Ion battery or charger.” (NFPA 12/16/15 Statement on Hoverboard Safety). One consumer reported that they plugged their hoverboard into charge when it began “popping and cracking” then “burst into flames.” This incident caused smoke and fire damage to the consumer’s kitchen wall. In order to increase hoverboard fire safety, the NFPA warned consumers to:
Choose a device with the seal of an independent testing laboratory.
Read and follow all manufacturer directions. If you do not understand the directions, ask for help.
An adult should be responsible for charging the hoverboard.
Do not leave a charging hoverboard unattended.
Only use the charging cord that came with the hoverboard.
Stop using your hoverboard if it overheats.
Extreme hot or cold temperature can hurt the battery.
Wholesaler and retailers are also taking notice of the fire hazard, with entities such as Amazon removing 97 percent of the boards from its site. Swagway, a hoverboard manufacturer, reported that Amazon sent notice to each manufacturer asking them to provide proof that their products “are compliant with applicable safety standards, including UN 38.3 (battery), UL 1642 (battery), and UL 60950-1 (charger).”
Subrogation Recovery Potential
The fire risk presented by hoverboards may lead to subrogation recovery opportunities. In California, hoverboard retailers and manufacturers could be liable under the design defect theory of strict products liability if their products are not performing as safely as an ordinary consumer would expect while being used in a reasonably foreseeable manner. See Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 427. As stated above, it is believed that the hoverboards are bursting into flames during the charging process because of defective batteries and plugs (See NFPA statement). It is likely that these failures are resulting from a defective design of the battery or charger. It is also believed that many of these products fail to meet the applicable safety standards (UL, etc.). It is reasonable to believe that the ordinary consumer expects their hoverboard to meet the applicable safety standards and does not expect it to catch fire during the charging process. Therefore, it is important to conduct detailed investigations following a loss, and take into account hoverboards in an area of origin.
In the interim, the industry will continue to track the CPSC’s investigation and look for guidance from entities such as NFPA and UL.