A colleague at the law school sent this case to me of a woman suing over third-degree burns suffered allegedly due to an underwire in her bikini. Robin Corrente, 50, is suing Coco Reef manufacturer Swimwear Anywhere in Manhattan Supreme Court.

Corrente wore the bikini on a 90-degree afternoon in August 2008 — not an unforeeable temperature for a bathing suit. She said that it took only an hour to start to experience pain and later found blisters. The burns required the removal of a small amount of skin.

We have previously seen lawsuits over bras due to the placement of the underwire or the chemical treatment of the garment (here).

One of the strangest such cases involved one of Victoria’s Secret thongs. In Los Angeles, Macrida Patterson, 52, said that she received a serious eye injury when either a pendant or a metal fastener snapped off a pair of panties and struck her in the eye. Patterson works in parking enforcement for the Los Angeles Department of Transportation and her attorney said that the injury will “affect her for the rest of her life.”

This latest case certainly raises a standard product liability claim. Under the Restatement Second, the bikini would (if the allegations are proven) be more dangerous “than the expectations of the ordinary consumer.” Moreover, under the risk/utility test used by some courts, there most be clearly better designs that achieve the same function without the risk. Even under the more favorable Restatement Third standard for manufacturers, it would presumably fail the standard of a “reasonable alternative design.” The most obvious claims would be a design defect on the metal used or lack of insulation. It could also raise a manufacturing defect if the intended insulation was not properly attached. Finally, there may be a warning defect if swimmers (who are known to frequent hot beaches) are at risk of overheating in the underwire.

The company could argue that the bikini (which had been purchased a good period before it was actually used) may have been substantially altered. However, this appears doubtful for a garment that must be designed to be used repeatedly in both sun and water.

Source: Daily Mail

Jonathan Turley