Zara is coming under legal fire for the second time this month, but this time it is not for copyright infringement; it is for allegedly selling a dress that contained a “dead rodent” sewn into it. According to New York resident, Cailey Fiesel’s lawsuit, which was filed this week in New York Supreme Court, the New York state-level trial court, after purchasing a dress from Zara’s Greenwich, Connecticut store, she noticed a “disturbingly pungent odor” coming from the dress - which originated in Turkey - when she wore it to work a few weeks later. She ultimately discovered that a rodent had been sewn into the seam of the dress.
Fiesel alleges that the Spanish fast fashion giant “manufactured, distributed, delivered, supplied, inspected, and/or sold the dress, which was unfit for its intended purpose and unreasonably hazardous, causing personal injury to the plaintiff." She also maintains the company “breached its duty to exercise reasonable care in designing, manufacturing, inspecting, distributing, delivering, supplying, inspecting, and/or selling its products by negligently releasing into the marketplace a product that was defective by containing disease causing rodents.”
"As a result of Zara's negligence, Ms. Fiesel has sustained significant personal injuries and emotional distress," the suit claims. "She formed a large rash that was diagnosed as a rodent born disease," and as a result, is seeking unspecified damages "in a sum that will fairly and adequately compensate her for the damages and injuries she has suffered.”
In a statement, a spokesman from Zara said fast fashion giant is "aware of the suit, and investigating the matter further.” She further noted: “Zara USA has stringent health and safety standards, and we are committed to ensuring that all of our products meet these rigorous requirements."
DUTY OF CARE AND NEGLIGENCE
Put simply, every business that holds itself out to the public has a duty to exercise the ordinary care that a reasonable person would use under the same or similar circumstances. Such laws vary quite a bit among the various U.S. states and in Connecticut – where the dress at issue was purchased – the law is well settled as to the high duty of care owed by a business owner – like Zara – when an individual enters into its business establishment.
Typically, for the plaintiff – such as Fiesel – to recover for the breach of a duty owed to her as a business invitee, the court will look to "a two-prong analysis that includes: (1) a determination of foreseeability; and (2) a public policy analysis." (Jaworski v Kiernan, 241 Conn. 399, 696 A.2d. 332).
The key question in terms of foreseeability is this: Would the ordinary person in the defendant's position, knowing what he knew or should have known, anticipate that the harm of the general nature of that was suffered was likely to result? In order to determine whether or not the foreseeability requirement is met, the court will consider the totality of the circumstances as a whole. In the case at hand, this might include, whether Zara or other fast fashion retailers have experienced this issue in the past; whether the manufacturer of the dress has a history of producing sub-par garments; what Zara does to inspect its garments and accessories; etc.
Second, the Court will not impose a duty of care on the defendant if it would be inconsistent with public policy. In considering whether public policy "suggests the imposition of a duty, we consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participant; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Connecticut Law of Torts, Wright & Fitzgerald, (3d ed. & Supp.), § 49).
While the first element of the duty of care test, foreseeability, might be difficult to ascertain, the public policy prong is arguably straightforward. This is because: (1) normal shoppers expect NOT to purchase garments with dead animals sewn into them; (2) public policy does NOT encourage clothing manufacturers to sell garments with dead animals sewn into them and likely does not place the duty to monitor such occurrences on the consumer but on the manufacturer; (3) placing the duty to monitor manufacturing to avoid the sale of garments containing dead animals on the manufacturer would likely lead to the avoidance like the case at hand; and (4) without knowing off what how other jurisdictions have ruled on similar cases, it seem completely fair to side with Fiesel on this final prong.
Chances are, this case will settle out of court before any of these discussion occur - as the majority of lawsuits tend to settle before trial - but stay tuned.