A case recently came before the United States District Court for the Western District of Oklahoma involving a PERS system. The estate of decedent filed a claim against the manufacturer of the PERS system and the company that leased and monitored the system in the District Court of Grady County, Okla.

The decedent, who lived alone, suffered a stroke and was found by members of his family lying on his bed, unable to speak. When his family arrived they dialed 911, but the decedent did not recover from the stroke and his family filed the lawsuit. The plaintiff’s estate contended that one or both of the defendants were responsible for the death because after calling 911, the family attempted to activate the unit, and the unit failed to connect to the defendant’s monitoring station. The plaintiff contended that had the unit operated correctly, the decedent would have been able to summon help and earlier intervention would have saved his life.  

The defendants each filed a motion for summary judgment in the District Court and in each case the motion was denied. The defendants then brought this action in the United States District Court for the Western District of Oklahoma requesting the court to reconsider the state court’s ruling. 

The court indicated that the plaintiff, in order to succeed, must first prove that the product was the cause of the injury; the mere possibility that it might have causedthe injury is not enough. Secondly, in the action against the manufacturer the plaintiff must prove that the defect existed in the product at the time the product left the manufacturer’s possession and control. In the action against the supplier of the article, the plaintiff must prove that the article was defective at the time of sale for public use or consumption or at the time it left the retailer’s possession and control. Thirdly, the plaintiff must prove that the defect made the article unreasonably dangerous to him or to his property. 

The court found the summary judgment appropriate because there was no evidence that the deceased used or attempted to use either the pendant or the console button following his stroke. In fact, the pendant, designed to be worn around the neck, was not found when the deceased was discovered by his family. Rather it was found by his cleaning person after his death, under the bed. There was nothing more than speculation that the deceased attempted to push either the pendant or base buttons and that the attempt was unsuccessful, resulting in a delay in medical treatment. Therefore the court concluded that the plaintiff cannot establish any injury to the deceased as a result of any alleged defect. 

The court also found that plaintiff failed to establish that the PERS unit and/or the transmitter pendant were unreasonably dangerous.”

The design defect identified by the plaintiff’s expert was the failure to include cellular backup, such that if the telephone line malfunctions, the unit would nevertheless remain operable. The court pointed out that there was no evidence presented that the ordinary person who purchases a PERS unit designed to operate through a traditional telephone line, would anticipate that if the landline failed to function the unit would nevertheless remain able to connect to the monitoring station.

The court then pointed out that there was no evidence submitted that an ordinary consumer, when the unit was manufactured, would have anticipated that the PERS unit attached to a traditional telephone line would have included a cellular backup, especially in the absence of any cellular provider. The court concluded that no reasonable consumer would anticipate that a unit designed to be plugged into a landline would offer cellular backup or that such unit would work in the event the telephone line became inoperative. The fact that cellular backup could have been incorporated into the unit is not dispositive; “merely because a product could be made safer does not mean it posed an unreasonable danger to the ordinary consumer who used it.”

Therefore, on reconsideration, the United States District Court reversed the state court and granted summary judgment in favor of the both the manufacturer and the monitoring company.

We have been asked to install exterior cameras in a residence of one of our accounts. Because of the nature of the location of the residence, the camera will cover not only our subscriber’s residence, but also the exterior of a residence next door. Will this create any violation on our part?

To ask Les Gold a question, e-mail sdm@bnpmedia.com.

The fact that the camera covers a neighbor’s residence or other common areas such as a street, should not create a violation, as long as the camera is not covering any area, such as a sauna or pool, where the individual would have an expectation to the right of privacy. Therefore, if the camera is only covering the exterior of the premises where there is no expectation to the right of privacy, it should not present any type of a violation. As for adjacent streets, one would not have an expectation to the right of privacy so it should not present any type of problem.