Wii Have a Problem - (Defective toy shatters plasma television)

[forchamps]

What is the name of your state? Massachusetts

Long (but colorful) story here.

I shattered our neighbor's plasma television screen several weeks ago when playing their Nintendo Wii entertainment system (for those who don't already know, the Wii is an interactive game system where the user simulates motion to activate characters on the video screen).

The accident occurred when I was simulating a swing with a "baseball bat" attachment, a device that snaps into the Wii's interactive remote to allow the user to experience a more "lifelike" swing.

Well, I step up to the plate, and of course, after several swings, the bat detaches from the remote and hits the brand new 50 inch screen. I was using the bat correctly; it's locking mechanism simply let loose, allowing the bat to hurl across the room.

We started at the top, contacting Nintendo, who referred us to the parent company that manufactures the bat (Hasbro), who in turn, directed us to a company called Performance Designed Products, a firm that manufactures a variety of peripherals (or, add-ons) for various gaming products.

We filed our claim -- the price of the television, and were instructed to send them a letter of complaint, along with the product for testing (I wish we hadn't sent in the evidence so quickly, but my neighbor wanted to be compliant). But, thankfully, we were prudent enough to make a video of myself swinging the bat in an open field before sending it in. The video illustrates several times how easily the bat detaches from the remote and launches itself anywhere from 20 to 100 feet away. We included the video with the package we sent. We also sent photos of the damaged set.

The response has been underwhelming. At first, a company representative said they were unable to locate the bat we sent via certified mail. They eventually found the bat, but said it would have to be tested and needed a week to do so. A test was finally done, which they say showed no discernible flaws. However, they also claim they cannot view the video we sent them and are waiting for someone with "technical expertise" to help them view it. So far, they've offered to pay half the price of the television to put this to rest, which is unacceptable to us.

I think they are stalling, and I believe the video is strong evidence. If they continue to claim they cannot view it, I may post it publicly on the Web to help them.

Another tidbit. We've learned of a couple filing a similar case on the Web. After being given a similarly unsatisfying offer, they went to the media. A news report has been filed and is posted on the Web.

Also, the company has since added an addendum to the product's original manual that warns about using "excessive force" when swinging. That warning was added to the Web site last week, after both ourselves and the other party filed claims.

But perhaps most importantly, I think these incidents illustrate a potentially dangerous product. The bat could have easily hit several nearby onlookers instead of the set. Perhaps a recall is in order.

So, do we have a case?

Thanks so much for reading (and, hopefully, laughing a bit along the way)!

 

[Shay-Pari'e]

I'm sorry, but I did have to laugh, as many of us have the same fear of this exact thing happening.

We have the Wii and it is certainly used in front of the hubby's pioneer elite plasma. We don't use anything but the numb chucks, even for baseball, but can tell you that we have stocked up on wrist bands. (I highly suggest this)

Depending on how old the TV is, it may be a good settlement, then again, if they are willing to settle, your friend might want to think about pushing it further.

Wish I could have been a fly on the wall,lol.

 

[PJ Weber]

A month or two back there was a video on Youtube showing this exact same thing happening

 

[justalayman]

just for fun, here is a site titled
'Wii have a problem" that is a compilation of accidents such as yours.

http://www.wiihaveaproblem.com/

Here's the deal.

IF you were using the toy as directed and it failed and caused damage, they are liable for the value of the television at the time of the incident.

Take note: as directed means IF it said use a wrist strap and you didn;t, no liability. If is said don't do this, and you did, no liability.

It is a given that you will be using it in front of a television and the toys are designed to be used in a particular way. As long as you followed the directions, they have a problem.

Also, the company has since added an addendum to the product's original manual that warns about using "excessive force" when swinging.

if this was added after your purchase, it does not apply to you unless they can prove they delivered this requirement to you. Besides that, "too much force" is so subjective it is unenforcable as a disclaimer. What is "too much force"?

 

[forchamps]

A month or two back there was a video on Youtube showing this exact same thing happening

Thanks for the response, everyone.

In reference to the above post, the plethora of videos circulating on the Web involve people actually letting go of the remote and hurling at their televisions.

Our case, I believe, is quite different, as it involves a device that broke off of the remote while it was being used correctly. The wrist strap was not a factor here, since it only fastens the remote to the user's hands, not the additional bat attachment.

As a side note, legally speaking, should I be held responsible for this? It hasn't gotten to this point yet, but today my neighbor (and friend) alluded that he and his wife feel that I am obligated to pay for any unmet damages. I feel that, being a freak accident that could easily have happened to one of them, a fair compromise would be to split any remaining costs needed to purchase a new television.

Thanks again.

 

[justalayman]

Thanks for the response, everyone.

In reference to the above post, the plethora of videos circulating on the Web involve people actually letting go of the remote and hurling at their televisions.

Our case, I believe, is quite different, as it involves a device that broke off of the remote while it was being used correctly. The wrist strap was not a factor here, since it only fastens the remote to the user's hands, not the additional bat attachment.

As a side note, legally speaking, should I be held responsible for this? It hasn't gotten to this point yet, but today my neighbor (and friend) alluded that he and his wife feel that I am obligated to pay for any unmet damages. I feel that, being a freak accident that could just have easily happened to one of them, a fair compromise would be to split any remaining costs needed to purchase a new television.

Thanks again.

fine. be that way. That site includes all types of incidents including some similar to yours. I posted it for the comedic relief. As well, I did write concerning your specific situation and if you would bother to read it, I did address the fact you were possibly dealing with a device that was the result of faulty engineering but I guess you missed that part.

Since you apparently did not read my previous post, I will not bother you and provide an answer for your latest question.

have a great day.

 

[ecmst12]

Since you were using the product as directed, and were not negligent in any way, you could not be personally liable for the poorly designed peripheral.

 

[forchamps]

fine. be that way. That site includes all types of incidents including some similar to yours. I posted it for the comedic relief. As well, I did write concerning your specific situation and if you would bother to read it, I did address the fact you were possibly dealing with a device that was the result of faulty engineering but I guess you missed that part.

Since you apparently did not read my previous post, I will not bother you and provide an answer for your latest question.

have a great day.

Whoa. Slow down.

I never said anything that denounced your post. I just wanted to clarify my situation in case of any confusion. And yes, I did read your post , and I appreciate your comments. You referenced the wrist strap, and I responded in kind -- again, to clarify that it was used.

Perhaps you should have heeded your own advice and read my post more carefully. If you did, you would have noticed that I had quoted this comment -- "A month or two back there was a video on Youtube showing this exact same thing happening" -- and not yours.

Again, I referenced that line not to discount the individual who posted it, but only to clarify the circumstances surrounding our incident. If we're speaking legally here, wouldn't it be important to make a distinction between a product malfunction and user error?

I'm sorry you no longer feel compelled to respond to this post, but I thank you for your time, regardless. Sometimes its hard to discern in printed form what a poster is really trying to say, but I think it's important to give each other the benefit of the doubt, rather than make assumptions about each other's intent or behavior.

 

[justalayman]

=forchamps;1891045] You referenced the wrist strap, and I responded in kind -- again, to clarify that it was used.

I referenced the wrist strap only as an example. Notice the line following that mention became really generic?

Perhaps you should have heeded your own advice and read my post more carefully. If you did, you would have noticed that I had quoted this comment -- "A month or two back there was a video on Youtube showing this exact same thing happening" -- and not yours.

My apolgogies, my mistake and misunderstanding of your post.

If we're speaking legally here, wouldn't it be important to make a distinction between a product malfunction and user error?

yep and that is why I posted:

IF you were using the toy as directed and it failed and caused damage, they are liable for the value of the television at the time of the incident.

I'm sorry you no longer feel compelled to respond to this post, but I thank you for your time, regardless.

Fine, ok, no more kissing up

Mistakes were made. good enough.

so to this:

As a side note, legally speaking, should I be held responsible for this? It hasn't gotten to this point yet, but today my neighbor (and friend) alluded that he and his wife feel that I am obligated to pay for any unmet damages. I feel that, being a freak accident that could easily have happened to one of them, a fair compromise would be to split any remaining costs needed to purchase a new television.

just tell them that what they seek is far less than the emotional distress their defective toy has caused you as you feel horrible about their tv being damaged due to their defective toy and you are willing to settle with them giving you $25,000 for that distress.
Then when they are over being pissed at you, let them know that it was not your fault the damage occured but the defective toy and they need to seek compensation from the party that truly is at fault and that is Nintendo. As you stated, the difference is product malfunction compared to user error. There was no user error.

 

[forchamps]

Thank you kind sir. Classy post.

You make good sense. I have a really good relationship with these people, and I believe they will make a good faith effort to resolve this issue with the company before they take it up with me (they do feel, however, that I may have swung a bit too hard, but isn't the "too much force" claim that this company is making the very thing we're supposed to be fighting?).

Hopefully, like the Beatles, "Wii can work it out." (Okay, I admit it, that was lame.)

Thanks again to all who took time to respond.

 

[Ohiogal]

if this was added after your purchase, it does not apply to you unless they can prove they delivered this requirement to you. Besides that, "too much force" is so subjective it is unenforcable as a disclaimer. What is "too much force"?

It does not apply at all to this case because rules of evidence do NOT allow it to be used against the company.

 

[justalayman]

Hey, it's the big "O". How ya been?

can you explain what you mean?

 

[Ohiogal]

Hey, it's the big "O". How ya been?

can you explain what you mean?

The Big "O" is the Queen B in Domestic and hangs out there but this subject caught my eye as I am envious of not having a WII yet.

Rule 407 of Federal Rules of Evidence:
Subsequent Remedial Measures
When after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures if not admissible to prove negligence, culpbable conduct, a defect in a product, a defect in a product's design, or a need for a warning or obstruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Hence it doesn't matter if they did deliver it because it cannot be used to show that the company made a defective product which they then put a warning on after complaints were received. Understand?

 

[justalayman]

it isn't that I was advocating using it against the company. I was thinking of it as the company would use it as a defense to their claim of the toy being defective as "you were warned". I was under the understanding that the company could not claim it (the disclaimer or warning) as a defense unless they could prove the user was aware of the possible defect (via the issuance and reasonable belief of receipt of the notification or disclaimer) and as such, it became a "you used it even though we told you not to" situation.

I can see where a plaintiff would like to use it as proof the manuf. was aware there was a problem but I do not see it as being a deal breaker in a situation such as this. I believe res ipsa loquitur says it all. I used it as intended (swinging away in front of a television), it broke when doing so and damage of the tv resulted so the manuf is liable. No?

as well, the ambiguous statement of "don't use too much force". What is "too much force"? How am I, as Joe Consumer, supposed to know and judge what it "too much force"? I do not see how a claim of, "it broke so you were swinging too fast" would be an acceptable defense.

and you don;t have a WII. I had a wee this morning.

Oh, not that kind of wee?