Toys R Us appeals $20.6 million verdict in lawsuit over Banzai water slide death

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by Michael Heygood

Last year, the U.S. Consumer Product Safety Commission recalled 21,000 inflatable Banzai in-ground pool water slides. The CPSC determined that the slides were defective and could deflate suddenly, allowing the user to crash to the ground. The commission also found that the slide is unstable and can topple over in both still and windy conditions. Toys R Us and Wal-Mart agreed to offer full refunds for the slides that are returned to them.

At the heart of the CPSC investigation was the death of Robin Aleo, the 29 year-old mother of an 18 month-old girl. While swimming at a relative’s house, Aleo, climbed to the top of the 6-foot-high Banzai Falls slide and then started sliding down head first. As she neared the bottom, the slide partially deflated and she struck her head on the edge of the pool, in front of her husband and daughter. Aleo’s neck was broken and she was paralyzed and unable to breathe. She died the following day.

Aleo’s family sued Toys R Us, and a jury returned a $20.6 million verdict after less than an hour of deliberation. The jury awarded Aleo’s estate $20.6 million, including $2.5 million in anticipated lost income from Aleo’s career in advertising and marketing, $100,000 for pain and suffering before her death and $18 million in punitive damages.

At the time of the slide recall, the CPSC also knew of two other cases: a 24-year-old man from Springfield, Mo., who became a quadriplegic and a woman from Allentown, Pa., who fractured her neck after slide deflations. The CPSC urged consumers to immediately stop using the slides and bring them to the nearest Toys R Us or Wal-Mart for a refund.

Toys R Us has appealed the Aleo verdict to the highest court in Massachusetts. The company argues that a 1976 Consumer Product Safety Commission regulation cited by Aleo’s family does not apply to inflatable in-ground pool slides, but only to rigid pool slides. Toys R Us also argues that the $18 million in punitive damages was “grossly excessive.”

Toys R US argues the 1976 regulation “established performance standards that were designed for rigid slides and that could not be met by an air-filled slide made of fabric like the Inflatable Slide.” But Aleo’s lawyers argue the regulation applies to all swimming pool slides “regardless of the materials of manufacture or structural characteristics.”

Mark Grantham was left a quadriplegic when the same thing allegedly happened to him on a Banzai Falls slide purchased at a Walmart. His suit against both Walmart and the Chinese manufacturers is still pending.

Jurors in the Aleo case were not told about the Missouri case but did learn that the company that Toys “R” Us uses in China to safety-test products before they are imported was never asked to test the pool slide for compliance with federal safety regulations.

While there is a small print warning not to use the slide head-first, federal safety standards required that the slide be tested for such a typical use. Under those standards, all pool slides are also required to support a load of 350 pounds without “deformation” or giving way. The Banzai slide deforms under almost any weight at all, and the shifting of weight as a user slides down displaces the air at the bottom, making it unable to support any load, according to an expert witness.

HO&P & Defective Product Litigation

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Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2013.