Crashing the Gates

Martell Fowler, 7, wanted to play ball with a friend at a neighboring apartment complex. It was a lazy Thursday during summer vacation, about noon on July 27, 1995. No one actually saw the little boy as he tried to enter the complex through the security gate where tenants drive their cars in and out. Police investigators conjecture that Martell approached the 30-foot wrought iron electronic gate just as it was closing. A resident found him about 15 minutes later, his 64-pound body trapped between the gate and the stationary iron rod post. Five years after the accident, Martell is the subject of a product liability and wrongful death suit in Alameda County, Calif. It’s one of dozens of similar suits across the country brought on behalf of victims of security gate accidents. As in Martell’s case, the suits target numerous defendants, including gate manufacturers, installers, and property owners for failing to equip the gates with a safety mechanism. “Martell shouldn’t have died, and we should be doing something to prevent the next child from getting killed,” says San Francisco plaintiffs’ attorney Debra Bridges. She is handling the case brought by Martell’s mother, Patricia Stephenson, who suffered a series of psychotic episodes and was twice admitted to a psychiatric hospital after her son’s death. Bridges is asking for compensatory and punitive damages in Stephenson’s suit. She and other plaintiffs attorneys also want a recall and retrofit of existing gates and tough industry standards requiring that the gates be fitted with a sensing device that makes them reverse on contact. “It’s not rocket science to make sure there’s a reversing device on these gates,” Bridges says. But the problem isn’t simple either, say defense attorneys. Some gates, such as ones installed at prisons or embassies, are not intended to reverse. It’s up to gate owners to install the reversing mechanisms, says P. Beach Kuhl, of counsel with San Francisco’s Sedgwick, Detert, Moran & Arnold. He is representing Stanley Works, a defendant in the Stephenson case and once a major gate motor manufacturer. “It’s about balancing the desire to keep the unwanted out while making it safe for everyone else to use the gate,” he says. A LONG LIST OF INJURIES AND DEATHS Bridges has compiled a long list of injuries and deaths reported to the federal Consumer Product Safety Commission. She points to discovery documents obtained for Martell’s case that show Stanley Works’ products have been involved in at least 93 cases filed since 1980. “At first, you think it’s a freak accident,” says Bridges. “But I went down to the courthouse and found a couple of other local cases — and I knew if I kept looking, there had to be more.” In one high-profile case, Cook County Circuit Court Judge Joan Corboy, 46, was vacationing in Florida when she was trapped and killed by an electronic gate in front of her family’s condominium complex. In the San Francisco Bay Area, court records show a number of cases similar to Martell’s. In Alameda County, a case brought on behalf of a Hayward, Calif., girl who was injured by a gate when she was 9 is now winding through pretrial discovery. Other California cases have settled, including one involving a 3-year-old San Mateo boy asphyxiated by a gate; a 16-year-old Contra Costa boy who broke his arm in a gate; and a 63-year-old Atherton man who was killed. In 10 years, the Consumer Product Safety Commission has completed 29 accident investigations and received more than 80 complaints involving the gates. The reports are graphic, describing injuries — sometimes fatal — to the heads, chests, and hands of dozens of children and adults. In Martell’s case, the defendants are Stanley Works; gate installer Electronics Innovations; the Ross Villas apartment complex; R & S Overhead Garage Doors; Access Distributors; and Encon Electronics. The complaint in Stephenson v. Stanley Works, alleges wrongful death, product liability, negligence, premises liability, and unfair business practices. “Each of the defendants knew the product(s) would be purchased and used without inspection for defects,” the complaint says. “Adequate warnings of the danger were not given…. The gate and its operator and parts are an attractive nuisance to children.” Kuhl, Stanley Works’ attorney, says the company has had to spend millions of dollars defending itself in personal injury cases involving gates equipped with the company’s motors. Most of the cases settle. Like the other defendants, Kuhl notes, his client made only a component of the gates, the gate motor. And he says Stanley Works — which sold its gate operator division about five years ago — manufactured components that came equipped with security options, including a reversing edge. “It’s a component of a system someone else designed,” Kuhl says in Stanley Works’ defense. “It’s up to whomever designed the gate to decide what mechanisms are appropriate.” Attorneys for the manufacturers maintain that part of the blame for the accidents lies with property owners — and even some of the victims. In some cases, as in Martell’s, a separate pedestrian gate is adjacent to the vehicle gate. Attorneys also note that the gates vary greatly to fit the specific location. For example, some gates slide on rollers while others swing open and close. “Though the accidents may involve similar products, the circumstances surrounding each accident is unique,” says Oakland, Calif., attorney Paul Caleo of Burnham & Brown, who is representing Encon Electronics in Martell’s case. Kuhl also notes that the industry has largely abided by standards established by Underwriter’s Laboratory, a product testing and certification organization that aims to establish standards for manufacturers. “Until 30 years ago, gates were largely confined to users on industrial properties,” Kuhl said. “As Americans have perceived more crime, they’ve become more and more security conscious.” But a gate designed for an industrial site shouldn’t be used for residential properties, says Daniel Kelly, a partner with San Francisco’s Walkup, Melodia, Kelly & Echeverria who represented an elderly woman severely injured by a gate. “Who cares if it bangs up against a truck? But when you put one of these gates into a neighborhood where you have elderly residents and young children running around, it’s a whole different ball game.” Bridges says it would be just as easy to manufacture the gates with a default safety device. “Is it up to Ford or Chevrolet to tell the car dealerships to check the brakes and make sure they work OK?” she asks. Other plaintiffs’ attorneys say part of the problem is that people aren’t aware of the danger the gates pose. John Stein, a plaintiffs’ attorney with San Jose, Calif.’s Boccardo Law Firm, represented the family of the 63-year-old Atherton man who was crushed. “We are all human beings and by our nature, we’ll make mistakes. That’s why we have seat belts and regulate products like microwaves and garage doors,” he says. “In the end, we need federal safety standards for these gates to say they must have a sensing device to stop them before they hurt someone.” In February, an automatic sensor system to prevent entrapment was added into the UL standards as “a permanent and integral part of an operator.” Ken Giles, a spokesman for the Consumer Product Safety Commission, likens recent developments in anti-entrapment standards for security gates to the regulation of automatic garage doors beginning nearly 20 years ago. About 60 children were killed by garage doors in 20 years before a federal mandate required the door to reverse upon contact. Giles said the commission continues to work with the security gate industry to seek more effective voluntary standards. “But I don’t think there’s any simple formula,” said Giles. “With a big appliance like an electric security gate, you’re still going to have old products out there. These standards are prospective, not retrospective.” Bridges says the UL standards are not enough — both because the standards are not mandatory and because they don’t affect older gates. “What these gate manufacturers need to do is recall their products and retrofit them for safe operation,” she says. Martell’s case went to trial earlier this year. Bridges presented nine weeks of testimony and evidence before Alameda County Superior Court Judge Patrick Zika declared a mistrial. The judge is away on vacation through the month and is expected to start a new trial in September.