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For Christmas, Martha Perez bought her son, Jorge, a battery-powered scooter. She purchased the “Fuzzy” brand, manufactured in China by Leoch E-Vehicle Co. Ltd., for $200 at a store called Champion Scooters in the Dolphin Mall near Miami. The store was only open for three months during the Christmas buying season and no longer exists. On Dec. 31, the 44-year-old Perez, who was born with cerebral palsy and is deaf, was riding his new scooter around his subdivision in the Doral area when he went over a small speed bump and the front wheel came off. Perez fell and was seriously injured. He was rushed to Palmetto General Hospital and was transferred by helicopter to Ryder Trauma Center. He was diagnosed with a fractured neck, and remains in serious/critical condition with loss of function and sensation in his arms and legs. Miami lawyer Thomas A. Culmo said he and his wife, Elisabeth, filed a product liability lawsuit Friday on behalf of Perez against the store, the importer Scootzy Motors LLC, and the manufacturer. The amount of damages they will seek is undetermined because “the rehabilitation picture is fuzzy at this point,” said Elisabeth Culmo. There are hundreds, if not thousands, of similar scooters on the streets and sidewalks of South Florida. Many are driven by children. Thomas Culmo said he’s already signed up a second seriously injured client from a similar scooter accident and wants to file a class action suit because of the danger of the devices. Culmo said he plans to sue based on theories of product defect, strict liability, negligence and breach of implied warranty. “The defect is so simple, yet so potentially life-threatening, that we really wanted to get the word out that if you have one of these, make sure it’s safe,” Thomas Culmo said. But there’s a broader issue as well, one that could make it difficult for Perez to collect damages in this case. Champion Scooters is one of many seasonal retailers that bloom each year before Christmas and disappear as Christmas trees are being taken down. It’s hard to hold them legally accountable for defective products they sell. One Miami plaintiff attorney who has handled similar cases, David Bianchi, said that even when such retailers can be tracked down, they often have little or no liability coverage. And suing a foreign manufacturer can be particularly difficult due to jurisdictional issues, said Bianchi, partner at Stewart Tilghman Fox & Bianchi. Pete Marrero, general manager of the Dolphin Mall, at 11401 NW 12th St. in western Miami-Dade County, said Champion Scooters Corp. opened its doors Sept. 15 under a seasonal lease that expired Dec. 31. Like other malls, Dolphin leases to seasonal tenants during holiday periods such as Christmas, Halloween and Valentine’s Day, he said. Because of the expected litigation, Marrero declined to comment in detail. But he said the mall is conducting its own investigation of the matter. “We take it very seriously,” he said. According to state records, Champion was incorporated on June 10, 2003. Its president is listed as Carolina Hernandez of Hialeah Gardens, and Mireya J. Borges of Pembroke Pines is vice president. Neither could be reached for comment. The importer was Scootzy Motors LLC, based in the Miami Free Zone. Scootzy executive Rafael Sacal declined to comment or provide contact phone numbers for Champion officials or the scooter manufacturer, Leoch E-Vehicle Co. Ltd., of Nanshan, Shenzhen, China. Thomas Culmo said the Fuzzy scooter’s front fork, which holds the wheel hub, was poorly designed. The scooter was designed so that during assembly, the front axle can be slipped into semi-circular slots in the fork and then secured by tightening bolts on either side of the axle. But the bolts are not locking bolts, which unscrew only with a tool, Culmo said. Instead, they are the type that can loosen when the scooter is in use. Because the slot is an open semi-circle, there’s nothing to stop the wheel from popping off if the bolts loosen, Culmo says. “These bolts will loosen — not might but will — under normal operation of the product,” he said. “Once the bolts loosen, there’s 100 percent certainty that the wheel will fall off, because there’s nothing to hold it in place.” According to Culmo, similar scooters can be purchased at major retailers as well as at small shops. They are sold under a variety of brand names. The state of Florida does not require a driver’s license for operators of these scooters, which are driven on sidewalks and streets. There also is no minimum age for operating the scooters. Such scooters formerly were subject to regulation by the Florida Department of Highway Safety and Motor Vehicles. But under an exclusion that took effect in July 1, 2002, they were deregulated by the Legislature. Ervin Gonzalez, a Coral Gables lawyer with product liability experience, said that successfully suing seasonal retailers and foreign manufacturers is difficult but not impossible. Product liability law protects consumers by making anyone in the chain of designing, manufacturing, marketing, distribution and selling responsible for defective products, he said. Gonzalez, a partner at Colson Hicks Eidson, said there are international trade agreements that can be used to hold Chinese manufacturers accountable in U.S. courts. What makes suing Chinese manufacturers potentially reachable is that many Chinese companies are in partnership with the Chinese government. So it’s possible that plaintiffs in a successful suit could recover damages by attaching Chinese government assets, Gonzalez said. Bianchi, also a veteran of product liability litigation, predicted that the Culmos have a tough fight ahead. “This is not unusual, to have a poorly designed product that you see all over the place,” he said. “You think people must have thought about all these [design] issues.” But, he said, the manufacturers often didn’t think carefully about the design, and because of the unlikelihood that defendants have sufficient insurance from which to collect or U.S. assets to attach, “you have nothing.” Culmo said Perez, who receives Social Security disability payments, was completely functional physically before the accident, and had no difficulty riding a bicycle or doing manual labor. Mark Ross, spokesman for the U.S. Consumer Product Safety Commission in Bethesda, Md., said Thursday that no recalls have been issued for motorized scooters. About 5,900 emergency-room treated injuries from gas- or electric-powered scooters were reported in 2002, he said. The number was closer to 5,000 for two years prior to that. Nonpower scooters, by contrast, were involved in 100,000 emergency room-treated injuries in 2001 and 60,000 in 2002. “There were a lot and they were inexpensive and they became the hot toy for a while,” he explained. The commission has a toll-free hotline and Web site where people can report products they think are unsafe and in need of investigation, he said. The number is 1-800-638-2772; the Web site is www.scsc.gov.

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