Toys R Us has vowed to appeal a $20 million verdict in Massachusetts in favor of the family of Robin Aleo who was killed after slamming her head on a concrete pool deck when a 6-foot inflatable pool slide deflated. The major issue in the appeal is likely to be the argument that the slide did not comply with federal safety standards. Toys R Us claims the federal standards were written for solid slides and that inflatable slides did not exist when the regulations were written.

The accident occurred during the summer of 2006 when Robin Aleo, 29, slid down head first on a “Banzai” pool slide. The slide partially collapsed and she slammed her head into the deck. She suffered a broken neck and died the next day in Boston.

The plaintiffs argued that the slide did not meet the 1976 Consumer Product Safety Commission regulation for ladders but the company insisted that the standard was written for rigid pool slides.

The verdict broke down to $2.5 million in anticipated lost income from Aleo’s career in advertising and marketing, $100,000 for pain and suffering and $18 million in punitive damages. Toys R Us insists that the $18 million in punitive damages is “grossly excessive.” However, this could present a close question since the ratio of punitive to compensatory damages is within the 10-1 range. The Supreme Court has previously struck down the awarding of punitive damages to citizens suing companies as unconstitutional. These cases like Gore v. BMW involved punitive damages greater than a 10 to 1 ratio to compensatory damages. They were found to run afoul of due process. In the Gore decision, the court wrote that “the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575, 116 S.Ct. at 1599. “This principle reflects the accepted view that some wrongs are more blameworthy than others.” Id.

The judge could reduce the award through an order of remittitur. Judges cannot increase an award but they can reduce it. They leave the attorney with the choice of accepting the lower amount or seeking an appeal.

Part of the problem for Toy R Us is that this case would seem to reaffirm the need for the same standards since a woman died on this one. However, the question is whether any inflatable slide could meet the standards of a rigid slide. If the standards was not applicable, the impact of the arguments on the trial were likely significant for the jury.

There is one standard that would seem to apply to any slide — rigid or inflatable. Toys R Us argued that the instruction manual and small warning label near the climbing footholds that said the weight limit was 200 pounds. Regulations require slides to support up to 350 pounds. Aleo weighed 148 pounds. However, it is ridiculous to expect a limit of 200 pounds with a family slide. Under the common law, a product design can be defective for failing to avoid “foreseeable misuse” of the product. This would seem a classic example of it.

One of the issue on appeal was the decision of the court to bar testimony from the company that Aleo misused the slide by jumping or diving head first. I think that such testimony should have been allowed but at the same time the plaintiffs should have been able to argue foreseeable misuse. I doubt that jury would have found it very convincing that no reasonable person would go down a slide head first.

Source: USA Today