Lawsuit Filed In Escalator Death Mixes Product Liability, Premises Liability and Wrongful Death

This past March, a four year-old boy was killed in an escalator accident at a mall in Auburn, Massachusetts. The boy, Mark DiBona, was pulled by the handrail of the escalator into a 6 ¼ inch gap that existed alongside the escalator. The boy was pulled into the gap that abutted a Plexiglas barrier, and he fell one story to the floor below, suffering devastating head injuries. After doctors determined that the boy suffered extensive and irreversible brain damage, and essentially declared him brain dead, the boy’s parents donated his organs.

Escalator safety inspections are normally conducted by the state. Media reports following this incident caused the Patrick administration to conduct a review of not only when this particular escalator was last inspected and by whom, but also a statewide review of escalator safety inspections in general. This inquiry led to disciplinary action being taken against not only the two inspectors that were responsible for the Auburn mall escalator, but approximately two thirds of the state’s total escalator inspectors, for approving escalators with safety violations that were similar to those that caused Mark DiBona’s death.

Who is legally liable for injuries or death in such a situation? The answer is, potentially a number of different parties. And who brings the suit? When the case involves a fatality, the answer is the executor of the victim’s estate – in this case, the parents of this boy, on behalf of his estate. The potential defendants in a case like this, can be several: The designer of the escalator; the manufacturer of the escalator (if different); the company that installed the escalator; the property owner of the mall, the retailer in whose store the escalator was operating in; the Commonwealth of Massachusetts (who employed the escalator inspectors); and possibly other potential defendants. The legal reason why so many potential defendants are named is because each party may have played a role in the constellation of events that ultimately led to the injury or death that is the result of this suit.

In this case, the defendants named in the suit include the Simon Property Group, Inc., (an owner/operator of the mall where the incident occurred,) Mayflower Auburn LP and the Mall At Auburn LLC (also owner/operators of the mall,) Sears Roebuck and Co. (the retailer in the mall where the escalator was located,) Botany Bay Construction Co. Inc. (the contractor who oversaw construction and installation of the escalator,) and the Schindler Elevator Corp, which designed and manufactured the escalator.

The suit, filed in Worcester Superior Court, represents a combination of elements of traditional negligence, product liability, and Massachusetts wrongful death lawsuits. The ultimate strength of such a case will hinge on information and evidence that is obtained during an extensive discovery process, so it is difficult to predict at this extremely initial stage, exactly how this case will end up. However, in my experience as a Boston/Dedham Massachusetts personal injury lawyer, this type of tragic death case will likely settle prior to trial. I highly doubt that any of these defendants, the total number of which may narrow as discovery moves along, would want to put this case in front of a jury. The prospect of witnesses, including this boy’s parents, describing the events that caused this boy’s death in front of a jury, is not something that most defense attorneys would want to see happen. Additionally, information reportedly discovered so far indicates that the building permits issued by the Town of Auburn for Auburn explicitly called for protective barriers to be used, as part of an escalator replacement that took place previously in that mall.

Lawyers representing the liability insurance companies that insure the various defendants will defend this case. Any final, total settlement will likely be comprised of various settlements separately entered into on behalf of the various defendants involved. As awful as such lawsuits are, it’s suits like this that hold negligent defendants accountable for their failures to act as required. Hopefully, the DiBona family’s goals of holding the responsible parties accountable, and hence making future events like this less likely, will be realized. That’s why our civil justice system is structured as it is, and in the vast majority of times, that system works.

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