CROCS: Weird Looking But Not Necessarily Dangerous, Says 1st Cir.

Personal injury attorneys may want to pay attention to a First Circuit ruling issued last month on products liability claims against CROCS shoes.

FindLaw favorite Judge Bruce Selya opens with an amusing observation about the clogs' fashion faux pas: "CROCS are odd looking shoes, known for their comfort."

Odd looking yes, but dangerous around escalators? It's not clear, the surprisingly fashion conscious panel ruled.

CROCS: Snapping Into Escalators

The plaintiff's 9-year-old daughter allegedly sustained an injury to her right foot when her CROCS resin sandal became stuck in the side of an escalator.

The district court granted summary judgment to the shoemaker, ruling the plaintiff failed to meet her burden of proof under Massachusetts law that the shoes present a heightened risk of escalator entrapment. On appeal, the panel began -- and ended -- with the question of whether the plaintiff presented sufficient evidence to show the breach of some legally cognizable duty.

Under Massachusetts law, manufacturers have a duty to warn only where there is "some reason to suppose a warning is needed" -- namely, when it presents a risk. Here, the burden fell on the plaintiff to "make a tenable showing that CROCS pose a heightened risk of escalator entrapment."

Insufficient Evidence

The panel rejected the following "evidentiary pillars" of CROC escalator dangers proffered by the plaintiff:

"Cryptic incident reports." The panel rejected evidence of the company's files about previous complaints regarding children and escalator entrapment. The panel deemed the reports "meager" anecdotes, not probative evidence, because the plaintiff didn't demonstrate this "quantum of complaints are atypical of the shoe industry." The reports might indicate "normal" dangers associated with wearing shoes near escalators, not necessarily heightened, special dangers posed by CROCS.
Japanese ministry report. The panel rejected a Japanese ministry report comparing escalator entrapment tests for a variety of shoe types and concluded that CROCS pose a heightened risk. This report didn't fly because it was unauthenticated and the methodology wasn't accredited by an expert, and therefore inadmissible to thwart summary judgment.
Design change in response to Japanese report. The plaintiff argued that the design of a new sandal model for the Japanese market is telling of the risk. But the panel countered that when "unmoored from the substance of the inadmissible ministry report," the design change doesn't equate to "dangerous sandals." Earnestly responding to a regulator's concern doesn't necessarily mean the regulator's concern is justified, the panel ruled.
Generalized escalator safety warning. Finally, the plaintiff tried to use the company's decision to include "a generalized escalator safety warning on the hangtag of its sandals" as evidence of special CROC danger. But the court rejected the argument, noting that the warning label "makes no mention of any special danger posed by CROCS. It speaks, in the most general terms, about escalator safety."

Because her evidentiary arguments fell short of "sufficiently probative," the panel couldn't tell whether CROCS present a heightened risk of escalator entrapment, and therefore affirmed the lower court's entry of summary judgment.

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