Aleo v. SLB Toys USA, Inc.

466 Mass. 398

995 N.E.2d 740

Michael ALEO ¹

v.SLB TOYS USA, INC.,² & others.³

SJC–11294.

Supreme Judicial Court of Massachusetts, Essex.

Submitted May 6, 2013.

Decided Sept. 13, 2013.

Gregory T. Parks, of Pennsylvania (John J. McGivney, Boston, with him) for Toys “R” Us, Inc., & another.

W. Thomas Smith (Benjamin R. Zimmermann, Boston, with him) for the plaintiff.

The following submitted briefs for amici curiae:

Deborah R. White, of Virginia, & Ashley C. Parrish & Karen F. Grohman, of the District of Columbia, for Retail Litigation Center, Inc.

Frederick B. Locker, of New York, & Thomas E. Peisch, Boston, & Christopher K. Sweeney for Toy Industry Association, Inc.

Hugh F. Young, Jr., of Virginia, John M. Thomas, of Michigan, & David R. Geiger & Joseph P. Lucia, Boston, for Product Liability Advisory Council, Inc.Thomas B. Drohan & Carl Valvo, Boston, for Retailers Association of Massachusetts.

Christopher P. Flanagan & Christopher J. Seusing, Boston, for Massachusetts Defense Lawyers Association.

Mary Alice McLarty & Jeffrey White, of the District of Columbia, & Timothy C. Kelleher, Boston, & Thomas R. Murphy for American Association for Justice & another.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

In 2006, while visiting relatives in Andover, twenty-nine year old Robin Aleo ⁴ attempted to use an inflatable swimming pool slide that had been imported and sold by Toys “R” Us, Inc., and Toysrus.com, LLC (collectively, Toys R Us).⁵ She slid down head first; when she reached the bottom of the slide, it collapsed, and her head struck the concrete deck of the swimmingpool through the fabric of the slide. Robin's upper two cervical vertebrae fractured, resulting in quadriplegia. She died the following day, after her family, in accordance with her wishes, decided to withdraw life support.

In 2008, Michael Aleo, Robin's widower, filed an action in the Superior Court, both individually and as administrator of Robin's estate, against SLB Toys USA, Inc., and Amazon.com, Inc., alleging negligence, breach of the implied warranty of merchantability, wrongful death, and violation of G.L. c. 93A.⁶ Subsequently, Toys R Us and Amazon.com Kids, Inc., were added as additional defendants.⁷ A Superior Court jury found Toys R Us liable for negligence, breach of warranty, and wrongful death, awarding compensatory damages in the amount of $2,640,000.⁸ The jury also found Toys R Us grossly negligent and awarded punitive damages in the amount of $18 million. See G.L. c. 229, § 2 (punitive damages available for gross negligence in wrongful death action).⁹ The judge denied Toys R Us's posttrial motions for a new trial on all issues, judgment notwithstanding the verdict, and a new trial on damages subject to remittitur, and Toys R Us, represented by new counsel, appealed. We allowed both parties' applications for direct appellate review.

Toys R Us challenges certain pretrial rulings, the sufficiency of the evidence, and the constitutionality of the $18 million award of punitive damages. We discern no error in the judge's evidentiary rulings or in his ruling permitting the plaintiff to argue that the slide was “illegal,” and we conclude that there was sufficient evidence to support the jury's findings of negligence, breach of warranty, and gross negligence. We conclude as well that the jury's award of punitive damages does not exceed constitutional limits.

1. Background. We recite the facts the jury could have found, reserving some facts for later discussion. In 2005, Toys R Us decided to purchase a product called Banzai Falls In–Ground Pool Slide from a vendor in China and import it into the United States for sale. The Banzai Falls In–Ground Pool Slide is made of a tent-like fabric with a rubber-coated sliding surface and is sold with an electric fan used to inflate it. The slide is intended to be installed adjacent to an in-ground swimming pool, so that a person using the slide may descend the slide ramp into the pool.

Before the slide was imported into the United States, Bureau Veritas, an independent testing laboratory, was retained by Toys R Us to evaluate it. Bureau Veritas conducted various tests that were requested by either Toys R Us or the Chinese vendor. Bureau Veritas produced certificates indicating that the slide had been tested for compliance with United States Federal regulations and toy industry standards regarding lead content, flammability, electronically operated toys, soluble heavy metals content, mechanical hazards, electric fans, labeling, and sharp points and edges. There was no indication that Toys R Us or the vendor in China requested that the slide be tested, or that the slide was tested, for compliance with 16 C.F.R. § 1207 (1978) (§ 1207), a Federal safety standard applicable to all swimming pool slides “regardless of the materials of manufacture or structural characteristics of the slides.” 16 C.F.R. § 1207.1(b)(2) (1978).¹⁰ The certificates of compliance produced by Bureau Veritas were sent to an employee in Toys R Us's safety assurance department who received approximately 4,000 certificates of this kind per month. Ultimately, Toys R Us imported approximately 4,000 Banzai Falls In–Ground Pool Slides into the United States for sale.

In 2006, Sarah Letsky purchased a Banzai Falls In–Ground Pool Slide from Toys R Us using the Internet. She and her husband William Letsky, who is Michael's uncle, installed the slide beside the swimming pool at their home in Andover. That summer, Robin and Michael, along with their fifteen month old daughter, visited the Letskys. On July 29, a number of people, including the Aleos and the Letskys, as well as additional family and friends, were gathered around the Letskys' pool. Robin, who weighed approximately one hundred forty-five pounds, climbed to the top of the slide, paused on the platform there, spoke a few words to a friend, and descended head first. The bottom part of the slide was underinflated and collapsed under her weight. As a result, Robin's head struck the pool ledge through the fabric of the slide. She slid into the water and came up motionless.

Michael, along with his uncle and another man, removed Robin from the pool, and Michael administered cardiopulmonary resuscitation. Robin was taken by helicopter to Brigham and Women's Hospital in Boston, where she was placed on a ventilator and diagnosed with a severed spinal cord. Doctors advised her family that she would never breathe or move on her own again. At the hospital, Robin awoke for approximately three seconds and told Michael, “I can't feel anything.” The next day, Michael, along with Robin's parents, decided to remove life support, as Robin previously had stated that she would not want to be kept alive under such conditions.

2. Discussion. Toys R Us argues that (1) certain evidence of misuse of the slide was improperly excluded at trial, (2) the judge erred in permitting the plaintiff to refer to the slide as “illegal” before the jury, (3) there was insufficient evidence to establish negligence or breach of warranty, (4) there was insufficient evidence to establish gross negligence, and (5) the award of punitive damages was so excessive as to violate due process.¹¹ a. Evidence of misuse. At trial, Toys R Us sought to establish that Robin misused the slide by jumping or diving, rather than sliding, from the platform at the top of the slide. It contends that the judge improperly excluded three types of evidence indicating misuse: hearsay statements in a police report, hearsay statements in medical records, and the opinion of one of Toys R Us's expert witnesses. We address each category of evidence in turn.¹²

i. Statements in police report. The judge allowed the plaintiff's motion to exclude statements regarding the accident that were included in a police report. An Andover police detective stated in his report, “According to family [members, Robin] was standing on top of a [six-foot] inflatable slide and attempted to dive off into the pool, but the slide gave way and she struck her head on the side of the pool....” Toys R Us maintains that the statements should have been admitted as spontaneous utterances. See Commonwealth v. Santiago, 437 Mass. 620, 623, 774 N.E.2d 143 (2002).

“Generally, determinations as to the admissibility of evidence lie ‘within the sound discretion of the [trial] judge.’ ” Commonwealth v. Jones, 464 Mass. 16, 19–20, 979 N.E.2d 1088 (2012), quoting Commonwealth v. Dunn, 407 Mass. 798, 807, 556 N.E.2d 30 (1990). A spontaneous utterance may not be introduced in evidence unless there is evidence sufficient to support a finding that the declarant had personal knowledge of the matter in question. See Commonwealth v. Harbin, 435 Mass. 654, 657, 760 N.E.2d 1216 (2002).

Here, the police report does not indicate which family members the detective spoke to, or whether the declarants had witnessed the accident. In his deposition, the detective stated that he could not identify the individuals who provided the information. Similarly, an Andover police sergeant, who was also at the scene, stated in his deposition, “I believe [Robin] went to jump off the slide and it deflated”; he indicated, however, that this information was provided to him by another police officer, and not by anyone with personal knowledge of the accident. Given that there was no evidence that the unknown declarants had personal knowledge of Robin's manner of descent, the judge did not abuse his discretion in excluding the statements.

ii. Statements in medical records. The judge also excluded statements regarding the accident that appeared in Robin's medical records. Specifically, medical records from the Andover fire-rescue department, Boston Med Flight, and Brigham and Women's Hospital make several references to Robin diving or jumping from the slide.

Statements in medical records are admissible, even though hearsay, where they are made “in the regular course of the...