August 28, 2013
It took six weeks of near-daily asking, but the U.S. Consumer Product Safety Commission has finally allowed a statement on its actions regarding home elevator entrapment hazards to trickle out of the bedrock that is 6B (the section of the Consumer Product Safety Act that allows manufacturers to control the flow of information from the CPSC.):
“The agency has an active and ongoing compliance investigation regarding the safety of residential elevators and the entrapment hazard they can present,” the CPSC said.
This “active and ongoing” compliance investigation emanates from a March presentation that Atlanta attorneys Andy Cash and Dave Krugler made to the CPSC staff on behalf of the Helvey family, whose six-year-old son suffered a severe head injury after becoming entrapped in a home elevator on Christmas Eve, 2010. The Helvey’s elevator was a National Wheel-o-Vator, now owned by Thyssenkrupp. The CPSC has jurisdiction over elevators used in residential settings as a consumer product. They are not subject to any mandatory federal standards, only industry-written voluntary standards, which may or may not have been adopted by states as a legal requirement.
And as part of its official statement, the CPSC also said this:
“While CPSC investigates the role and responsibilities of manufacturers and installers when it comes to the safety of residential elevators, owners of residential elevators should take steps to ensure children do not have unsupervised access to in-home elevators.”
Michael and Brandi Helvey strongly refuted any suggestions that parents are to blame – the classic manufacturers’ response when their mis-designed or mis-manufactured products start causing harm in the marketplace. They had been scrupulous in installing gates on all the stairs, styrofoam covers on the sharp stone corners of the fireplace, childproof kitchen cabinet locks and a front door deadbolt to ensure Jacob couldn’t get out.
“This happened – not on the day of Jacob’s incident, but the day I bought that elevator. I go back to that. There were no warnings. We had no idea that this was even a possibility,” says Michael Helvey. “And if we had even a clue that this was a possibility, we would have made sure that it wasn’t a possibility. We have so many safety features in the house. We were so protective. It was rare that Jacob was ever alone. This happened during a five-minute trip to the laundry room – and in fact he wasn’t alone, because we have an open foyer.”
On July 11, The Safety Record published The Elevator Design Hazard That’s Been Killing Children for Decades, which described how children have been killed and severely injured for more than 70 years – not because the supervising adults in their lives have been remiss, but because manufacturers have designed elevators that allow children to become entrapped between the hoistway (outer) door and the accordion style door that encloses the elevator car. Many home elevators and similar versions in older apartment and commercial buildings have too much clearance between the two doors, allowing children as old as 12 to fit between them. When the elevator is called to another floor, the hoistway door automatically locks, and the child’s body is carried along with the elevator car until it meets the obstruction of the sill.
Attorneys who have successfully brought civil liability lawsuits against elevator companies have amassed a trove of industry documents going back to the 1930s acknowledging this serious problem, and their efforts to warn building owners and other manufacturers. In 1931, the Otis elevator company obtained a patent for an inexpensive 6-inch space guard to prevent child entrapment. More recently, the voluntary consensus standards-setting body spent the last seven years discussing changes to the standard that would reduce the allowable clearance so that children could not fit into the gap, and describe more precise measuring points. The gap between the hoistway door and the peaks of the accordion door can be much less that the distance when measured from the valleys of the accordion, for example. Despite the efforts of a vocal and blunt minority, the clearance part of the standard has not been amended.
“Our hope was for immediate action, including an industry wide recall,” says Dave Krugler of Cash, Krugler & Fredericks. “We are encouraged the CPSC has commenced its own investigation into these issues and hope that quick action will take place. The residential elevator industry has demonstrated for decades that it will not eliminate the entrapment hazard unless it is forced to do so. The CPSC has the power and responsibility to ensure that happens as soon as possible.”
It is difficult to determine the number of residential elevators in the U.S. or the numbers of children killed and injured in entrapment incidents. In the early1990s, the Otis Elevator company revealed to the plaintiffs in a New Jersey case, the deaths or severe injuries to 34 children from 1983-1993 in the southern New York and New Jersey area alone. And, according to the statement released by the CPSC yesterday, “the most recent figures from CPSC’s NEISS system show that an estimated 1,600 injuries associated with residential elevators and lifts were seen in emergency departments from 2011 through 2012. Some of those injuries included children becoming entrapped in the gap of residential elevators, tragically leading to fatalities and serious injuries.”
In mid-July, CPSC spokesman Scott Wolfson said the agency planned to undertake “a technical analysis of the safety risks posed by certain elevators” in fiscal Year 2014. But, he could not say much more because of the requirements 6B, which prohibits the CPSC from disclosing information that falls within the envelope of trade secrets or is “misleading” and “inaccurate.” The CPSC can disclose the existence of an investigation, under procedures designed to ensure the accuracy of whatever information is made public. The CPSC gives manufacturers 10 days to review any statements about their products, and typically the two entities release agreed-upon language.
In May the Commission voted 2-1 to direct the staff to come up with a plan to make 6B less cumbersome. The recommendations are required to meet all statutory requirements, but modernize and streamline the process to accomplish several goals: eliminating unnecessary administrative burdens to the agency; removing extra-statutory requirements; eliminating redundancies in providing notice; minimizing FOIA backlogs; and maximizing transparency and openness in the agency’s disclosure of information. Manufacturers love 6B, so cue the wailing.
In this case, SRS made a request in July about the CPSC’s actions following the July. But the 6B 10-day clock was apparently re-set a couple of times. And although Wolfson was prohibited from explaining exactly why, our best guess is that Thyssenkrupp, the company which acquired National Wheel-o-Vator in 2008, which headed the standards committee that refused to take action on excessive clearances, has the answer.
Section 6B may prohibit the CPSC from saying anything negative about the company, but the facts pretty much speak for themselves.