USA – ARKANSAS Trends and Developments Contributed by: William Mell Griffin and Kimberly Young, Friday, Eldredge & Clark, LLP
Managing Product Liability Risk Involving Minors in Arkansas Claims involving minors carry unique and heightened risk Claims involving minors have always been part of the product liability landscape, but an increase in tech - nology-driven products and digital environments has been swiftly followed by an increase in related claims where the end user is a minor. Product liability claims involving minors present a distinct and elevated risk profile for businesses. While the governing legal the - ories (defective design, manufacture and warnings) remain the same, their application shifts significantly when the end user is a child. Arkansas courts recognise that children are not sim - ply “small adults”. Their limited ability to appreciate risk, combined with a greater likelihood of foresee - able misuse, expands the scope of potential liability. As a result, product liability claims that may be easily defended when the product is used by adults can cre - ate exposure when used by, or even just accessible to, children. This is especially true with failure-to-warn claims. From a litigation perspective, product liability cases involving children are particularly challenging because: • juries are more sympathetic to minors; • the concept of “foreseeable misuse” expands; and • traditional defences like comparative and contribu - tory fault are less effective. As such, litigation involving minors requires a thought - ful approach that recognises the different legal stand - ards, strategies and available defences required when the end user is a child. The “ordinary and reasonably careful child” In law school, attorneys are taught to evaluate negli - gence based on what “The Reasonable Man” would do. Similarly, the Arkansas product liability statutes define an “unreasonably dangerous” product as one that is dangerous to an extent “beyond that which would be contemplated by the ordinary and reason - able buyer, consumer, or user” of the product.
When the injured party is a child, however, the bar for proving “unreasonably dangerous” is lowered. A plaintiff must prove only that the product is more dangerous than expected by an “ordinary and rea - sonably careful minor considering his or her age and intelligence”. This is true whether the product was specifically designed and marketed for children or whether it was simply foreseeable that minors would have access to it. If a product is likely to be encountered by children, it may give rise to liability even if it is marketed exclu - sively to adults. Courts will examine whether the manufacturer should have anticipated that children would interact with the product and whether reason - able steps were taken to mitigate associated risks. This principle has broad implications across industries. Appliances, medications, chemicals and consumer electronics may all fall within its scope, depending on how and where they are used. For companies, the key question is not how the product is marketed, but how it is likely to be used in practice. When determining whether a child’s access to a prod - uct was reasonably foreseeable, the child’s local cul - ture and customs are relevant. The types of products considered accessible to children by Arkansas courts may be surprising to some out-of-state and foreign manufacturers. For example, the Arkansas Supreme Court has held that it was reasonably foreseeable to the manufacturer of a tractor with a grain cart that children as young as eight and 13 would operate or otherwise access it. The court reasoned that farming in Arkansas is frequently a family operation and that all family, including the kids, may be expected to come into contact with the family’s farm machinery. As a result, companies must evaluate not only how a product is intended to be used, but how it is likely to be encountered in real-world settings. If a product is accessible to children, attractive to them or common - ly used in environments where children are present, Arkansas courts are likely to treat child interaction as foreseeable. That foreseeability, in turn, expands the scope of both design and warning obligations.
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