EagleTribune.com, North Andover, MA

September 14, 2013

$20.6M award upheld in accident

SJC supports findings against Toys R Us in Andover backyard case

By Bill Kirk

---- — BOSTON — The state Supreme Judicial Court yesterday upheld a $20.6 million award to a Colorado man whose wife died in a freak pool accident in an Andover backyard seven years ago.

Robin Aleo, who was 29 at the time of the accident on July 29, 2006, had been visiting Andover with her husband, Michael, and their 15-month-old daughter. That day, they were at the home of William and Sarah Letsky, Michael's uncle and aunt, for a pool party, according to a summary of the case contained in yesterday's ruling.

At some point during the gathering, Aleo climbed up to the top of an inflatable slide the Letskys had purchased online from Toys R Us and slid head-first into the pool. However, as Aleo, who weighed about 145 pounds, reached the bottom of the under-inflated slide, it collapsed. Her head hit the pavement, fracturing two upper cervical vertebrae and knocking her unconscious. She then slid into the water.

Her husband, along with his uncle and another man, pulled her out of the water, administered CPR and called 911. She was airlifted to Brigham and Women's Hospital, where she was placed on a ventilator and diagnosed with a severed spinal cord, according to the summary.

"Doctors advised her family that she would never breath or move on her own again," according to the court document. "At the hospital, Robin awoke for approximately three seconds and told Michael, 'I can't feel anything.'

"The next day, Michael, along with Robins' parents, decided to remove the life support, as Robin previously had stated that she would not want to be kept alive under such conditions."

In 2008, Michael Aleo, represented by Ben Zimmerman of Sugarman and Sugarman PC, sued Toys R Us in civil court, alleging negligence, breach of implied warranty and wrongful death.

An Essex County Superior Court jury found Toys R Us liable for the charges and awarded compensatory damages of $2.6 million. The jury also found Toys R Us "grossly negligent" and awarded punitive damages of $18 million.

Toys R Us appealed the ruling on a number of grounds, challenging certain pretrial rulings, the sufficiency of evidence and the constitutionality of the $18 million award in damages.

The SJC in its ruling yesterday wrote that it supported the jury's findings and rejected the arguments by Toys R Us.

Zimmerman said yesterday that while his client is pleased about the ruling, "in any case like this, it is not going to change what happened or the loss they suffered. The fact that the SJC upheld what the jury found - that his wife was killed due to misconduct by Toys R Us - is some solace for him."

It is unclear whether Toys R Us will appeal the ruling to the United States Supreme Court. The attorney representing Toys R Us, Gregory Parks of the law firm Morgan Lewis in Philadelphia, did not return a phone call. A local attorney working with Parks, John McGivney of Rubin and Rudman, 50 Rowes Wharf, Boston, deferred comment to Parks.

Zimmerman said the jury award and the SJC's decision upholding the award centered around the fact that the product had not been adequately tested before it was brought into the country from China, where it was manufactured.

“We are pleased that today’s decision upheld the finding of the jury, and recognized the tremendous and needless loss suffered by the Aleo family,” said Zimmerman, who tried the case with his partner Thomas Smith. “It also sends a powerful message to toy retailers across the country that they have a responsibility to ensure the products they import and bring to market are safe for consumers.”

He added yesterday, "it's a product that shouldn't have been brought into the country."