Andover Townsman, Andover, MA

May 9, 2013

$20M pool death case appealed

Toys `R' Us seeks to overturn decision

By Bill Kirk
bkirk@andovertownsman.com

---- — A legal case that started in the backyard of an Andover home in 2006 was debated before the Supreme Judicial Court Monday morning.

Tom Smith, of Sugarman & Sugarman of Boston, represented Michael Aleo of Colorado, whose wife died after sliding head-first down an inflatable pool slide, hitting her forehead on the concrete pool deck.

Greg Parks of the Philadelphia law firm of Morgan Lewis represented Toys “R” Us, which sold the slide to Aleo’s relatives, Sarah and William Letsky.

In July 2006, Robin Aleo, 29, was visiting her husband’s aunt and uncle, Sarah and William Letsky. As her husband, Michael, and 18-month-old daughter watched, Aleo climbed to the top of an inflatable slide on the edge of the in-ground pool and slid down head-first.

The slide collapsed, sending Aleo into the concrete pool deck, causing fatal injuries.

Michael Aleo claimed in his lawsuit that the product didn’t comply with federal safety standards.

In October 2011, Aleo was awarded $20.6 million by a Salem Superior Court jury. The award included $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.

Toys “R” Us appealed, and the Supreme Judicial Court decided to pick up the case.

The national chain argued that the 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 says the trial judge allowed lawyers for Aleo’s family to inflame the jury by accusing Toys “R” Us of importing an “illegal” product when it had relied on a certification that the slide met all safety regulations.

During Monday’s proceedings, which are available for viewing online at ma-appellatecourts.org, Parks argued that the regulations regarding pool slides were “inexplicable,” that there was “insufficient evidence” for a finding of negligence and that the amount of damages awarded to the Aleo was excessive.

Judges asked a number of questions of Parks, including whether the regulations applied to all slides or just rigid, non-inflatable slides. Parks argued that the regulations only applied to rigid, plastic slides because when they were written in the 1970s, inflatable slides didn’t exist.

But lawyers for Aleo’s husband have said pool slides have been subject to a federal safety standard since 1976. The standard applies to all pool slides, no matter what they are made of, said Benjamin Zimmermann, a Boston attorney who represents Michael Aleo.

Zimmermann, an attorney with Sugarman and Sugarman in Boston, said he is hopeful that the SJC upholds the Essex County jury’s verdict.

“Our argument is that they should affirm the jury’s verdict,” he said. “If they do that, the verdict will stand.”

He said it was also possible that the SJC, which generally issues rulings within 130 days of hearing oral arguments, could affirm parts of the verdict and send some parts back “on certain issues.”

A spokeswoman for Toys “R” Us said the Wayne, N.J.-based company has a policy of not commenting on pending litigation.

Zimmermann said his client, Michael Aleo, did not want to comment while the case was still pending. The Letskys, of Blackberry Lane, could not be reached for comment.

Material from the Associated Press was used in this report.