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A pool pump manufacturer hit with a $104 million product liability verdict in Miami-Dade Circuit Court told an appellate panel that it was not responsible for the catastrophic injuries suffered by a teenager who was trapped underwater by the suction of the pump. During oral arguments Monday before the 3rd District Court of Appeal, Mark Hicks, attorney for Sta-Rite Industries, said the huge verdict should be thrown out because the jury was not allowed to consider whether the pool owner or the pool maintenance company contributed to the accident. “The fact is that the pool maintenance company was responsible for taking care of the pool and they didn’t make sure that the grate over the drain was secure,” said Hicks, of Hicks & Kneale in Miami. “They never fixed it.” Chief Judge Alan Schwartz seemed to agree. “If a rational person, as opposed to a lawyer, were to look at this boy’s condition, wouldn’t they agree that it was partially caused by the fact that the pump controls were locked and the pool maintenance company didn’t fix the grate?” Schwartz asked. Hicks also argued that Miami-Dade Circuit Judge Celeste H. Muir erred in a pretrial ruling by accepting the plaintiffs’ interpretation of a 2001 Florida Supreme Court ruling on product liability. That ruling applied to automobile design, but the plaintiffs in the pool case succeeded in applying it to pool equipment accidents. The 3rd DCA judges seemed sympathetic to Hicks’ argument that the plaintiffs had stretched the Supreme Court ruling too far. But plaintiff counsel told the panel that the pump manufacturer was solely responsible for the boy’s injuries because it failed to adopt long-available technology that would shut off pool pumps if there were any obstruction, such as a person’s limb. In June 2000, 14-year-old Lorenzo Peterson was swimming at the Village Apartments in North Miami when he pulled off a loose drain cover protecting the pool pump. Peterson’s hand got stuck, and he was trapped underwater by the suction of the pump. Six adults tried to pull him free but could not because of the power of the suction. Peterson was finally pulled out after 12 minutes underwater when a police officer kicked down the door of the locked pool equipment room and shut off the pump. As a result of the accident, Peterson suffered catastrophic brain damage and is in a permanent vegetative state. In 2000, Peterson’s grandmother, Eva Mae, sued Village Apartments and the parent company of All Florida Pool Distributors, the pool maintenance company, for negligence. The suit claimed they were liable for failing to make sure the screws that held the drain cover in place were properly tightened. They also blamed the two defendants for locking the room where the pump kill switch was located. Within months, Peterson settled the case with the apartment owner and pool maintenance company for $7 million. In September 2001, Peterson’s grandmother filed suit in Miami-Dade Circuit Court against Delavan, Wis.-based Sta-Rite for product liability, design defect and failure to warn. According to the complaint, Sta-Rite knew about more than 20 similar pool entrapment cases involving its pumps but did nothing to install a safety device to protect swimmers. Prior to the trial, Judge Muir ruled that Sta-Rite could not argue that Village Apartments and All Florida shared any blame for the accident. Because Muir was transferred to a different division, retired Judge Harold Solomon presided over the trial. After the two-week trial last August, the jury found Sta-Rite 100 percent liable for manufacturing a product with a defective design and partially liable for failure to warn of potential dangers. It found the apartment owner 20 percent liable on the failure to warn claim. The jury awarded Peterson $32.5 million in economic damages and $72 million in past and future pain and suffering. That was the second giant pool liability verdict won last year by Coral Gables lawyer Michael Haggard, who handled the Peterson case with his partner Robert Parks. In January 2003, Haggard and his father, Andrew, won a $100 million verdict in Broward Circuit Court against a Hollywood apartment owner in the case of Loren Hinton, a 2-year-old who suffered severe brain damage after pushing open a broken gate and nearly drowning in the swimming pool. The verdict was later reduced to $30 million in a settlement the parties reached days before oral arguments were scheduled to be heard the 4th DCA. Last month, the liability insurer for the Hollywood apartment complex, Lloyd’s of London, filed a legal malpractice lawsuit in Broward Circuit Court against the law firms Carlton Fields and Cozen O’Connor, which handled the defense. TWO ACCIDENTS IN ONE? On Monday, arguing on behalf of the plaintiffs, Gerald Wetherington said Sta-Rite was solely liable for manufacturing a defective pool pump that did not have an automatic kill switch that would turn off the pump when it detected an obstruction. “If they’d had a kill switch, the boy’s hand would have been released in a second,” said Wetherington, a former chief judge of the Miami-Dade Circuit Court. He handled the appeal with former 3rd DCA Judge Phillip Hubbart. But Hicks, representing Sta-Rite, challenged another key part of one of the theories on which the plaintiffs won their big judgment. Using a 2001 Florida Supreme Court ruling, the plaintiffs argued at trial that Peterson’s near drowning was actually two accidents. The first accident occurred when Peterson removed the drain cover and got his hand stuck. The second accident occurred when the pump did not shut off and kept him under water. This argument was based on the theory of crashworthiness used in car accident cases, which separates the reasons for the crash from the reasons for the injuries. In 2001, the Florida Supreme Court in D’Amario v. Ford Motor Co. applied the crashworthiness theory, ruling that Ford could not deflect blame in a product liability case involving a fatal auto accident by blaming driver negligence. In that case, two teenagers were killed and another was seriously injured when the car they were in crashed into a tree and burst into flames. The victims’ parents sued Ford, arguing that the fire was caused by a defective relay switch that failed to stop gasoline from flowing from the fuel pump. The Supreme Court ruled that the accident could be separated into two accidents — the collision with the tree and the car bursting into flames. The justices said that evidence that the driver had been drinking and speeding should not have been presented to the jury because it had nothing to do with the car bursting into flames after impact. Ford had a duty to design its cars to avoid additional risk of injury in the event of an accident, the justices said. The high court held that the auto manufacturer could be held solely liable for the “enhanced injuries” that the victims sustained in the fire. This meant that Ford would be 100 percent responsible for whatever the jury awarded. The jury could not offset the damages by considering the actions of other parties. This theory of crashworthiness is what allowed Haggard and Parks to argue in the Peterson trial that Sta-Rite could be held 100 percent responsible for designing a defective product — regardless of any negligence on the part of the pool owner and maintenance company. But on Monday, Hicks argued to the 3rd DCA that the plaintiffs had stretched the theory too far. “This was one continuous accident,” he said. Judges John Fletcher and Gerald Cope seemed to agree, raising questions about how this could be considered two accidents. KILL SWITCH POSSIBLE? Wetherington responded that Sta-Rite had the sole responsibility to develop a safety device to shut off the pump based on its knowledge that dozens of other swimmers around the country had been injured by pool pumps. The company’s failure to do so caused Peterson to suffer “enhanced injuries” by being held under water for more than 10 minutes, Wetherington said. Wetherington said the plaintiff’s engineering expert testified that the pool equipment industry had the scientific know-how to develop a pump with an automatic shut-off device but hadn’t implemented it. “The industry can’t sit back and say there’s nothing out there,” he said, pounding angrily on the podium. Hicks countered that when the pool pump at the Village Apartments was manufactured in 1989, there was no such thing as an automatic kill switch in pool pumps. Even today, Hicks said, no pool pump manufacturer has implemented an automatic kill switch because of design problems. Kill switches aren’t feasible because they continually shut off the pump when any minor object, such as a leaf or towel, touches the drain. Then the owner has to manually restart the pump. Sta-Rite should not be held liable for failing to install a safety device that is not yet viable, he contended. But Wetherington said his engineering expert had solved that problem by designing a pump with a kill switch that turned the pump off for 30 seconds if obstructed, allowing the swimmer to get free. Then the pump automatically turned on again. Under Florida law, plaintiffs in product liability cases must prove only that the scientific knowledge and technology existed to prevent such accidents, not that such a device had actually been created, Wetherington said.

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