Possible legal issues with custom made baby fence

[Mark Gibney]

A client has asked me to design and build a lot of fences to protect their baby from hurting himself on stairways in their house. They want the fences to be beautiful, and sympathetic to the house interior.

Their house is big, and there are about 8 places they need fences, ranging from 3' to 18' spans.

The floors and stairs are covered in hard modern tile, so they do need the fences, and I would love the income from the job.

But my wife is concerned that if anything goes wrong and someone is injured that we could be the target of a zealous lawyer.

For what it's worth I am licensed, bonded and insured for millwork and cabinetry in California.

Would you take this job?

[Kevin Beitz]

Put on bill of sale... Dog barrier.

[Mike Cutler]

A client has asked me to design and build a lot of fences to protect their baby from hurting himself on stairways in their house. They want the fences to be beautiful, and sympathetic to the house interior.

Their house is big, and there are about 8 places they need fences, ranging from 3' to 18' spans.

The floors and stairs are covered in hard modern tile, so they do need the fences, and I would love the income from the job.

But my wife is concerned that if anything goes wrong and someone is injured that we could be the target of a zealous lawyer.

For what it's worth I am licensed, bonded and insured for millwork and cabinetry in California.

Would you take this job?

No, I personally would not, unless I had obtained legal advice upfront.
Your wife is correct. The liability could be huge, no matter what you call it on a bill of sale.

[Carl Beckett]

I would pass. Unfortunately, just the day and age we live in.

There is a product to put over cribs to keep the child from climbing out and falling. It was done for safety. Turns out some of them were tangled in it and strangled. And that was a reputable child safety design company.

I worked in consumer products for a few years. Every time something went wrong, customer sued. And many times it was blatant customer behavior that caused the problem but they just wanted a payout or to blame a company for their stupidity. One time they claimed a printer malfunction burned the house down. Investigation of the rubble discovered a foil candle bottom - the candle was put on top of the printer and it burned down and started a bigger fire. But the customer went after the printer company. These stories are many and go on and on.

Everything is fine until it isnt.

If you really want the work, you may be able to take the approach of being simply the 'fabricator'. That is, someone else has to do the design and get it approved and signed off on by building inspector (or some official reviewing body stating the design is valid). You then simply fabricate to the print. Any design liability is with the designer.

[roger wiegand]

1) Acquire, read, and follow the related regulations to the letter. CPSC for the feds, I wouldn't be surprised if CA had additional rules. There may be others.
2) Make sure your product and business liability insurance is in place at least at the usual $2M level, and consider going significantly higher. Increasing the limits may not be exorbitantly more expensive, talk to your agent.

Neither waivers nor what you call it on a bill of sale will make any difference. (especially given that you've publicly documented that you know what you're building here!) If you follow the regulations to the letter you should be OK, but back it up with an appropriate insurance policy. Building a legally compliant product provides no protection from being sued, it just improves your chance of prevailing in the end-- you want the insurance company on your side and providing the lawyer.

[Steve Rozmiarek]

I've wondered how tree house builders and wooden playground equipment manufacturers don't get sued to oblivion. It may be helpful to have your business structured as an LLC or Inc, which should give a degree of protection in the event of a lawsuit.

[Curt Harms]

I've wondered how tree house builders and wooden playground equipment manufacturers don't get sued to oblivion. It may be helpful to have your business structured as an LLC or Inc, which should give a degree of protection in the event of a lawsuit.

My understanding - and I'm no expert, just know what I read in the paper - that being an LLC or sub S corp. provides limited protection. If there is only one shareholder, good luck though I imagine it depends on the jurisdiction.

[Bill Dufour]

Sounds like these customers have lots of extra money to hire lawyers if anything goes wrong. Furthermore I think many rich folks will blame others, and not themselves, if anything goes wrong.
Bill D

[Bob Cooper]

Sounds like these customers have lots of extra money to hire lawyers if anything goes wrong. Furthermore I think many rich folks will blame others, and not themselves, if anything goes wrong.
Bill D

i'm pretty well off and know lots of similar folks and i disagree with this characterization.

[Van Huskey]

My understanding - and I'm no expert, just know what I read in the paper - that being an LLC or sub S corp. provides limited protection. If there is only one shareholder, good luck though I imagine it depends on the jurisdiction.

The key is how you actually run the LLC or subchapter S. It is rare that a good attorney will set up one with a single entity named, even in a sole proprietorship. Piercing the corporate veil is certainly possible especially if the corp was set up via "internet forms".

Sounds like these customers have lots of extra money to hire lawyers if anything goes wrong. Furthermore I think many rich folks will blame others, and not themselves, if anything goes wrong.
Bill D

From personal experience, I find this not to be true. People of lower socio-economic backgrounds are no less likely to sue for products liability situations than those of greater means. The contingency system allows even a homeless person to hire the best attorneys if they have a good and legitimate case. People of means are also more likely to have insurance that helps cover direct economic losses and future needs.

If your insurance covers it, build it. How is it any different to you if one of your cabinets falls of the wall and hits a kid, the lawyers will still come after you even if not your fault.

Build in the price money for a rider if need be to add more protection for this job.

While there are some obvious differences on the mechanical side (gates have to move and lock) this job isn't so far removed from stairs and railings in terms of exposure.


I would never suggest someone take on a job without feeling comfortable with the legal exposure. It is always a cost/benefit analysis in business. The value of the commision needs to be weighed against potential exposure which is actually hard to do on a single case basis (vs putting a million of them into the stream of commerce which an actuary can them run statistically significant numbers on). For a small business in a one-off situation, it all really comes down to the gut and for me a lot of that would be the customer themselves.

[Al Launier]

Tell them of your concerns, that you have decided against it, and for them to purchase suitable gates already on the market. Let the big boys handle any potential lawsuits.

[johnny means]

Have you seen the garbage sold as baby gates at Target and Walmart? I wouldn't hesitate to do the job anymore than any other railing application. It seems like all too often we act like children are eggs teetering on the head of a pin.

[Darcy Warner]

Just have them install invisible fence.

[Al Launier]

Just have them install invisible fence.

So funny!!!!!

[Bill Space]

...The value of the commission needs to be weighed against potential exposure which is actually hard to do on a single case basis (vs putting a million of them into the stream of commerce which an actuary can them run statistically significant numbers on). For a small business in a one-off situation, it all really comes down to the gut and for me a lot of that would be the customer themselves.

This ^^^^^

What's the chances of something bad happening in a one time situation, versus the exposure one would have if he were to make and sell a million of the same thing?

Too often we apply things we see on the news, that involve millions of opportunities for something to go bad, to something we might do only one time. The odds are not the same. But we somehow feel they are.

I would probably take that job myself if I were in your position.

Van's comment struck home when I read it several days ago. I think he hit the nail on the head.

Might not hurt to add a personal liability rider to your home owners policy as a backup just in case something ever goes wrong for you whatever it might be. Quite cheap actually. (OJ used one for his defense I remember reading, but likely not applicable if you are incorporated)

If you are confident in your ability to produce safe and effective protective barriers why not do it? Would you refrain for doing the same thing for yourself? If so, then best not to do it, but my impression is that you would do the same thing for yourself. So why not do it once for someone else? And turn a bit of profit for yourself.