With Halloween around the corner and pop-up Halloween costume stores selling various costumes, the consumer must be aware that some of these costumes may be highly flammable.

There are Federal regulations such as the Federal Flammable Fabrics Act, ("FFFA"), 15 U.S.C. 1191, which have certain minimum standards of flammability for clothing which would include Halloween costumes.

For those who think that costumes or fabrics do not catch fire, think again. In a case handled by our office, Feiner v. Calvin Klein, Ltd., 157 A.D.2d 501, 549 N.Y.S.2d 692 (1st Dept. 1990), a young woman was wearing a blouse which caught fire when she went near a stove, as a result of which she suffered severe burns.

The manufacturer's defense was that it had complied with the minimum standards of the FFFA. The New York Appellate Court made it clear that even if the manufacturer complies with the minimum standards of the FFFA, that does not mean it is not responsible or that the product was not defective if, in fact, it catches fire. Obviously, if the manufacturer does not meet minimum Federal standards, that is clearly proof of negligence.

For a similar proposition, see Mercogliano v. Sears, Roebuck and Co., 303 A.D.2d 566, 756 N.Y.S.2d 472 (2nd Dept. 2003), where an infant plaintiff was severely burned when a jacket she was wearing caught fire near a barbecue grill in the family's background. The court found that even if the manufacturer had complied with the minimum Federal standards that did not mean it was completely off the hook if the jacket caught fire and the fire spread rapidly.

Similarly, in Perez v. Mini-Max Stores, Inc. 231 A.D.2d 162, 661 N.Y.S.2d 659 (2nd Dept. 1997), a five year old boy was severely burned when he dropped a cigarette lighter onto a thermal undershirt. The court found that the fact that it may have met the minimum FFFA standards did not absolve the manufacturer from liability.

Both cases, Mercogliano and Perez cited the seminal case of Feiner v. Calvin Klein, Ltd., which had been handled by our office in 1990 and is still good law.

If you purchase a Halloween costume, make certain it is from a reputable manufacturer and at the very least meets the minimum FFFA standards which should be reflected on the box, and that it is not a costume created by unidentified persons and sold in a pop-up store which will disappear after Halloween so that if the costume unfortunately does go up in flames and causes injury to the wearer or others in the vicinity of the wearer, there is no responsible party to answer for the harm.

Also be aware that even if the costume does meet minimum FFFA standards, it will still catch fire if exposed to a flame. With candles on tables at restaurants and clubs, and used for atmosphere for parties, make certain costumes do not come into contact with flames, to avoid possible serious burn injuries.