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The Xbox replacement cords issued in early 2005 were considerably beefier than the original cords, and emblazoned with multiple warning labels  (Source: smorty71.com)
Microsoft dismisses blame for death of baby

A lawsuit filed in December 2006 blames Microsoft, Wal-Mart and a power supply maker for a fire sparked by a faulty Xbox power cord. The fire, which took place in Warsaw, Ill, claimed the life of Wade Kline, the baby of the family who are behind the lawsuit.

"The fire was a direct and proximate result of the overheating of the game's power supply and wiring," claims the lawsuit. The Kline family is seeking unspecified damages.

Microsoft is now asking a court to dismiss the lawsuit arguing that "misuse or abuse" of the Xbox led to the fire, according to InformationWeek. The losses "were the result of an open, obvious, and apparent condition which was known to and recognized by the plaintiff and/or others who, nevertheless, knowingly, willingly, intentionally, and voluntarily exposed themselves to said danger and assumed the risk of incident, injuries, losses, and damages," Microsoft charges.

Microsoft recalled 14 million Xbox power cords because of potential fire hazards in February 2005, about two months after the Warsaw fire occurred.

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That doesnt sound right
By mdogs444 on 8/2/2007 9:50:51 AM , Rating: 2
Maybe I am not understanding the full extent of the lawsuit, or microsofts denial....

But if faulty cord caught fire and killed someone two months before the recall of the cord for that issue, how is MS not liable for damages?




RE: That doesnt sound right
By SirLucius on 8/2/2007 10:01:34 AM , Rating: 2
I agree, something is off with this.

quote:
The losses "were the result of an open, obvious, and apparent condition which was known to and recognized by the plaintiff and/or others who, nevertheless, knowingly, willingly, intentionally, and voluntarily exposed themselves to said danger and assumed the risk of incident, injuries, losses, and damages," Microsoft charges.


This sounds like MS is trying to say that these people knew the power cord was faulty before the recall was ever made, which seems highly unlikely to me. Most people I know don't know about recalls until well after they've occured.


RE: That doesnt sound right
By pheffern on 8/2/2007 10:45:37 AM , Rating: 2
This is a pretty standard sort of clause to find in a reply to a product liability suit like this. The defending company will always come back with something like this.


RE: That doesnt sound right
By OrSin on 8/2/2007 10:45:52 AM , Rating: 1
Or maybe the conditions in thier house was at fault. Maybe Xbox was in an enclosed space. Or they had 3 thing on an extention cord. I remember this from a while back and i think the fire was blamed on something like that. I can't remember the orginal story, but I remember thing damn I do that too. I hope my house is ok.

But if they recall the power cord after this, then they have some grounds to sue.


RE: That doesnt sound right
By omnicronx on 8/2/2007 12:36:30 PM , Rating: 2
or maybe his xbox was modded with an external harddrive to load games like many people did with their consoles (my friend had to keep the cover off so the xbox wouldnt overheat). Could also that they did something like attach 10 cords into one outlet or something stupid like that.

I really doubt MS would make such a claim without proof, especially when they recalled 14million power cords. MS must feel in someway that regardless of the state of the powercord, this terrible accident would have happened anyways because of the user not the xbox itself.


RE: That doesnt sound right
By Keeir on 8/2/2007 1:29:18 PM , Rating: 2
quote:
I really doubt MS would make such a claim without proof


Why? I would instead think MS couldn't settle this issue out of court and are now forced to defend themselves by attempting to create reasonable doubt. In court, MS will probably define correct use as a narrow defination given in thier Xbox User's guide. Having never read the User's guide, I can't say for sure what some of the instructions are, but I have seen User's Manuals for Electronics that define correct temperature and humidity ranges for operation... Not that this is a reasonable stance of Microsoft, but it must be a gamble they are willing to take based on the out-of-court settlement costs.


RE: That doesnt sound right
By omnicronx on 8/2/2007 2:08:30 PM , Rating: 2
But it just doesnt make sense, if Microsoft recalled a product known to create fires, and if it was no fault of the family and MS knows this, why would Microsoft make such a claim? it just doesnt make sense and would set them up for even a bigger loss and worse PR if they lose the case in court.

If Microsofts claims are not true, whether or not they try to use their
quote:
narrow defination given in thier Xbox User's guide.
It is going to make them look really bad. if they were really at fault, it would be better for MS to admit it now, rather than drag it through court just to be proven wrong later. Its not like this case is going to make the company backrupt.


RE: That doesnt sound right
By Keeir on 8/2/2007 3:22:51 PM , Rating: 2
quote:
It is going to make them look really bad. if they were really at fault, it would be better for MS to admit it now, rather than drag it through court just to be proven wrong later. Its not like this case is going to make the company backrupt.


Again, its not really about admiting fault as its about limiting payout (in my opinion without know the details). I see that they are suing for unspecified damages above 50,000 dollars... Who knows, maybe the family is wanting such an extreme amount to settle outside of court that this is worth it to microsoft monetarily (even if they are found totally at fault)

From the Xbox 360 User's Guide (can't find an Xbox's) some things that are considered "misuse and abuse" are:
1. Not getting your outlet's checked for proper current/voltage
2. Having the cord where it can be chewed by animals or walked on
3. Exposing cords to a source of heat (wouldn't that be the back of the 360?)
4. Wrapping the cord around the power supply
5. Plugging the cables in at the wrong order
or my favorite
6. "Do not place the console or power supply in a confined space such as a bookcase, rack, or stereo cabinent"

So technically, if you kept you 360 cord bundled up behind your 360 in you enclosed on three sides home enterainment area, you are misusing and abusing you 360, even though this on the surface appears to be perfectly reasonable (and expected!) usage.

I fully expect microsoft to use every tool to reduce the size of the pay-out. They would really like to intimidate the other party into a settlement out of court of a much lower amount, and using langauge like "Yeah, its kind our fault, but we don't believe its our 50 million dollar fault" really doesn't help thier objectives any


RE: That doesnt sound right
By omnicronx on 8/3/2007 8:56:20 AM , Rating: 2
but the family only originally wanted 50k and MS said no, so they sued. If this was about payout they would have done it in the first place. MS must really believe they are not at fault here.


RE: That doesnt sound right
By Keeir on 8/3/2007 11:22:37 AM , Rating: 2
quote:
but the family only originally wanted 50k and MS said no, so they sued. If this was about payout they would have done it in the first place. MS must really believe they are not at fault here.


You are basing this upon the family sueing for

quote:
The Kline family is seeking in excess of $50,000 in damages for the fire that destroyed their Warsaw, Ill., home.


From Dailytech, http://www.dailytech.com/Xbox+Killed+Baby+Lawsuit+...

There are alot of number's greater than 50,000. In the trial setting in Ill., 50,000 is probably a standard devision between case types to qualify for maybe a jury trial, or transfer to Federal Court.

Here's a great case from Ill. as well
http://www.saukvalley.com/articles/2007/07/14/news...

See how the plaintiff is asking for Punitive Damages and Actual Damages in excess of 50,000?


RE: That doesnt sound right
By artemicion on 8/3/2007 9:34:59 AM , Rating: 2
A recall does not necessarily equate to liability. There are a number of reasons for this. A recalled product does not necessarily mean that it is so inherently dangerous as to automatically establish liability on the manufacturer. Many times products are recalled because manufacturers are afraid stupid people will do stupid things with the product that will produce costly, but ultimately frivolous, lawsuits and publicity.

Secondly, the public policy reason. Imagine the American legal system says that a recall could be used in court to automatically establish liability. NO MANUFACTURER WOULD EVER RECALL A PRODUCT EVER AGAIN. Why admit automatic liability when you can take the chance that a borderline dangerous product will never produce an accident? So that's just bad public policy, so courts will never allow evidence of a product recall to be used to establish liability. If I recall my evidence law correctly, I don't think you can use remedial measures by a manufacturer (the recall) to establish liability AT ALL, because of the aforementioned public policy reason. Meaning not only is it not automatic liability, it can't even help to establish liability taken into consideration along with other circumstances. Again, my memory of evidence law may be rusty on this.

Another point, regarding Microsoft's legal defenses, it's a little haphazard for a news publication to rely on Microsoft's reply to the complaint to determine what their "real" defense is going to be. Typically what happens is that when you respond to allegations you invoke every defense known to man. This is because discovery hasn't been conducted yet and Microsoft in all likelihood has no knowledge whatsoever regarding the factual circumstances surrounding the incident. However, they don't want to waive any of their *possible* defenses for later down the road, so they invoke everything they could imagine would possibly become a defense in the future.

So ultimately, the blurb on Microsoft's defense could be meaningless. Or maybe the parents soaked their carpet in gasoline. Who knows? It's just standard legal practice.


RE: That doesnt sound right
By iNGEN on 8/3/2007 2:22:46 PM , Rating: 2
Liability for damages caused by a faulty product only exists in most states if the fault would not be reasonably known by the affected. Microsoft claims the parents of the child knew the cord was dangerously defective prior to the fire (in fact they admit so in their claim), yet they used the product anyway. Such a fact would reduce or eliminate a contributory negligence award.

If what Microsoft claims is true the claimants will not permit the suit to go to court because the judge will likely rule in Microsoft's favor.

The idea is pretty simple: No product defect supercedes irresponsible behavior (negligence).

This move by MS probably coincides with an appology from MS alongside a private offer to the family to settle for a more reasonable amount than the claimants demanded.


Either way....
By cheetah2k on 8/2/07, Rating: 0
RE: Either way....
By bobdelt on 8/3/2007 7:40:37 AM , Rating: 2
Why should they? They werent in the home. There's an inherent risk when dealing with electricity.

WHERE WERE THE PARENTS? I doubt the house burned down so fast that if the parents were nearby they could get the kid and walk out. I'm sure the thing reaked and smoked before turning into flames, and even then there would still be some time to get out of the house.


RE: Either way....
By CascadingDarkness on 8/3/2007 2:12:27 PM , Rating: 2
I've asked myself that too. Only way I see it might not be largely parents fault (not total). Maybe the fire occurred at night and they were asleep. By the time they were awoken to get out of the house it's possible the child, with more fragile lungs (and maybe closer to fire in house) could have already be past saving by time parents grabbed them an ran out. That's only scenario I could come up with that wouldn't place large amount of blame on parents.


RE: Either way....
By PlasmaBomb on 8/3/2007 7:52:48 PM , Rating: 2
Smoke inhalation is responsible of 60-80% of deaths in fires and yes children are more susceptible. As a result of this children under the age of 10 account for an estimated 80 percent of all fire deaths.


RE: Either way....
By geddarkstorm on 8/3/2007 5:12:23 PM , Rating: 2
Ever seen demos by the Fire Department about how fast a house can go up? Depending on what catches fire first and what's around (and what is causing the fire), you can have the whole structure engulfed in under half a minute. And depending on where you are in the house in proximity to the fire to begin with, that number can be reduced down to 11 seconds. More than that, depending on locations of fire detectors, and other factors of where the fire starts to spread (into the walls), the fire can grow greatly before detection.

A lot of people die in fires every year because they simply couldn't move fast enough to escape (the fire cuts off their routes).


RE: Either way....
By bobdelt on 8/3/2007 9:14:36 PM , Rating: 2
No, but I've seen my own house catch fire. Started by a candle. Started really slow, but once it got going the curtains lit up quick, the carpet reaked, and the couch barely got going. Once it had some power it looked like it was going to get big fast, luckily I had a fire enstiguisher.

I know it seemed like a long time but it probably wasn't as my mind was racing.

I assume the xbox was on when this happened? I would assume the kid was playing it? If thats the true and the kid wasnt smart enough to run out once the fire started the parents should have been there.

If the fire started in the middle of the night thats a different story, but if that happened how did they know it was the xbox?


RE: Either way....
By InsaneScientist on 8/4/2007 2:43:38 PM , Rating: 2
quote:
I assume the xbox was on when this happened? I would assume the kid was playing it? If thats the true and the kid wasnt smart enough to run out once the fire started the parents should have been there.

quote:
The fire, which took place in Warsaw, Ill, claimed the life of Wade Kline, the baby of the family who are behind the lawsuit.


Probably not. ;)

quote:
If the fire started in the middle of the night thats a different story, but if that happened how did they know it was the xbox?

That's a very good question... An extremely good question, actually.
If the parents were in any sort of circumstance where they would know that it was the Xbox, how on earth would they not have had enough warning to grab the kid and get out?


The outcome
By MatthewAC on 8/2/2007 1:20:01 PM , Rating: 1
There are two ways this can end imo.

1. Since the fire would've dismantled the home in which the Xbox was there's no way to tell how they were using it besides 'their word' which is good for nothing in court.

2. The recall was two months after, however the recall means the product was faulty so even if they were misusing it they could win the case.




RE: The outcome
By iNGEN on 8/3/2007 2:32:49 PM , Rating: 2
quote:
2. The recall was two months after, however the recall means the product was faulty so even if they were misusing it they could win the case.


On this point you have reversed the typical conclusion of precedents in the states of Illinois & California. Negligence priori exceeds defect. If the claimants were misusing the product any potential defect will be of minor consequence to the court.

I don't recall if Illinois is a contributory negligence state or not, but if so the claimants might get a small award, but they will likely end up paying far more in legal expenses to try their claim against Microsoft.


RE: The outcome
By eion on 8/4/2007 3:52:28 PM , Rating: 2
> Negligence priori [sic] exceeds defect. If the claimants were misusing the product any potential defect will be of minor consequence to the court.

If I remember my tort law correctly, it depends. If a defect led directly to the injury and any misuse had no effect, then I think a court would definitely look at the existence of a defect.
Of course (as other people have already stated), the fact that there was a recall at a later date can't be used as evidence of the existence of a defect.

> I don't recall if Illinois is a contributory negligence state or not, but if so the claimants might get a small award, but they will likely end up paying far more in legal expenses to try their claim against Microsoft.

I think you mean comparative negligence there. If the claimants were negligent and Illinois were a contributory negligence state (which it apparently hasn't been since 1981), then that the claimants would actually get nothing. As to the plaintiffs' legal bills, I strongly suspect that their lawyer is working on a contingency basis.


RE: The outcome
By iNGEN on 8/5/2007 1:35:40 PM , Rating: 2
quote:
If a defect led directly to the injury...


On priori.
The claimants already admitted they themselves found the power adapter defective. They said it was "hot, smelled like burnt eggs, and occasionally made popping noises". They also said they thought it was "dangerous" and "...might start a fire", but they used it anyway. Because any reasonable individual would have discontinued use of the powercord using the claimants' own assesment of its condition, fault in the creation of the condition is not relevant to the results of its use.

I'm not licensed in Illinois, nor do I work for Microsoft. But I'd stake a healthy wager the only thing making Microsoft's attorneys uncomfortable taking this one to trial is the age of the deceased.


RE: The outcome
By eion on 8/6/2007 3:16:46 AM , Rating: 2
Yes, but what I meant was that if the fire were started by something (in the xbox) other than the power adapter, then the plaintiffs' continued use of the adapter wouldn't make a difference. (NB: I'm not a tort guy, and I'm not licensed anywhere - yet. Stupid California bar. ;)

> But I'd stake a healthy wager the only thing making Microsoft's attorneys uncomfortable taking this one to trial is the age of the deceased.

I agree one hundred percent (ignoring the issue that throwing some money at them might be cheaper than going to trial, even if you're almost guaranteed to win).


xbox issue
By piroroadkill on 8/3/2007 11:18:03 AM , Rating: 2
By the way the fault has nothing to do with the cord itself and everything to do with the power socket mounting, the fact is when you plug and unplug the xbox power cord too many times, the connector can become loose, because the sole mounting for the connector is the solder on the power board - this in itself is a flawed design, unlike, say, the Dreamcast power connector, which has a notch in it whereby it is held firmly in place by the case, and not by the solder on the board.

Needless to say once the solder is loose, the connector may arc and cause sparking and excessive heat, leading to the issue.

The replacement cords simply cut the power in the event of this happening, they're basically just big automatic breakers just for this fault.




RE: xbox issue
By PlasmaBomb on 8/3/2007 7:44:19 PM , Rating: 2
Piro is spot on. No one has mentioned that not all the power cords were even recalled, what if the xbox involved in this fire was one which wasn't effected and microsoft can prove this?

Certainly some of the cases of people getting burned were a result of them poking at a sparking power supply.

First rule of electricity: You don’t touch live equipment
Second rule of electricity: You don’t touch live equipment… ever!

Turn off your appliance before poking about and don’t lick capacitors (or touch them with metal thingies).


RE: xbox issue
By mindless1 on 8/5/2007 8:44:49 PM , Rating: 2
Penty of techs MUST work on live equipment. Line isolation is a good idea but not always possible (down to a safe level).

The first rule of electricity is, have someone competent do the work. If you aren't competent enough to be aware of what and where the dangers lie, don't allow yourself the chance to find out by accident.


RE: xbox issue
By mindless1 on 8/5/2007 8:51:42 PM , Rating: 2
Quite right, there's some pictures and a tutorial on how to repair it here,
http://www.llamma.com/xbox/Xbox%20Power%20Cord%20F...

Once repaired, or as a preventative measure, you can take some non-conductive epoxy and put it around most of the perimeter of the power socket to PCB area, to keep it from moving around. Naturally that would likely void the warranty but done well practically eliminates the chances of it failing under *normal* use.


fire marshal
By Moishe on 8/2/2007 2:35:35 PM , Rating: 2
Maybe they should have once-per-year random fire marshal inspections at residences like they do at businesses. Seems pretty risky for any company to sell a product to a home that could be a death trap knowing full well that they could be blamed for it. I guess it's the chance you take.

Not that I'm saying MS isn't potentially at fault... The recall alone almost guarantees that MS will settle or lose.




RE: fire marshal
By iNGEN on 8/3/2007 2:38:45 PM , Rating: 2
quote:
Seems pretty risky for any company to sell a product to a home that could be a death trap knowing full well that they could be blamed for it.


That is precisely why most states give negligence the greatest weight in product liability cases. If this standard were not true the rate of innovation in consumer products would take a MASSIVE nosedive.


By philsworth on 8/2/2007 12:28:07 PM , Rating: 1
Jeebus, the original xbox is at risk of bursting into flames while the most recent is at risk of bricking unexpectedly. Maybe the business model of "let's make it a little more crap and therefore a little more cheaper than the competition" doesn't work as well in hardware as it has done for them in software.

My sympathy goes out to the family who, whatever the circumstances, have suffered a great loss.




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