Two and a half year old child sustained severe brain damage when a piece of marshmallow became lodged in the child’s airway.


Child’s mother sued marshmallow manufacturer on the ground that the marshmallow was dangerous and defective and contained no warning alerting of the aspiration danger to small children. Summary judgment in favor of marshmallow manufacturer was erroneous. Evidence proffered established a genuine issue of material fact concerning the chemical composition of the marshmallow, the foreseeability of the aspiration hazard and the cause of the resultant injury. Emery v. Federated Foods (1993) 262 Mont 83, 863 P2d 426.

About the Author: James Swartz
Mr. Swartz, our Managing and Principal Attorney at Swartz & Swartz P.C., is a nationally recognized and respected trial attorney as well as consumer advocate. His practice focuses on cases involving negligence, torts, products liability, medical malpractice, wrongful death, and other claims involving catastrophic injuries.

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