Can I keep using my Galaxy 7?
Richmond resident Shawn Minter is one of those who have experienced a fire with his replacement Samsung Galaxy 7 smartphone, waking him in the middle of the night with what sounded to him “like a firework or spaceship about to take off.” The phone was inches away from his head and was serious enough to burn his nightstand and fill the room with smoke while his baby was sleeping in the next room over.
Part of the reason that Samsung is being so assertive with its recall on Galaxy Note 7 smartphones is that under US laws (and Virginia laws) governing liability, they would likely be held fully responsible for damages, and possibly even criminally negligent, if they new about a dangerous flaw and didn’t do anything about it. Only .005% of their phones have caught fire – 100 out of nearly 2 million – but the fire problems with their lithium battery are serious enough that they are putting customers in real danger.
What might have happened if Shawn’s baby had been in a bassinet next to the nightstand? What if a phone caught fire inside a car and caused a highway accident? Even professional tractor trailer drivers would have trouble responding calmly to a three-foot-long trail of sparks shooting out of their phone. The company could face enormous damage settlements if serious injury or wrongful death was caused by one of their phone fires.
So far, property damage has been the main issue, and apparently Samsung’s insurance company isn’t being very forthcoming with their damage payments. They told Shawn Minter they would send someone to inspect the damage, then apparently didn’t follow up. He has switched to an old phone and the company has decided to stop selling their widely popular phone and recall all of them.
But some people are refusing to turn theirs in — a week after the second recall Galaxy 7 usage was at an all-time high!
This is where the liability gets interesting. Once a consumer is notified of a recall and informed of a product’s flaws, they assume some of the liability. As we’ve discussed before under Virginia law, there are no proportional damage awards based on comparative negligence. If a person fails to act prudently (returning an item that has been recalled because of potential fire hazard), their contributory negligence can prevent them from recovering any losses. And it may open them up to be held liable for any harm caused to others.
So, if you are still using your Samsung Galaxy 7, stop using it. As much as it may pain you to do it, take the $100 incentive and exchange it for a new, less risky device.