By Mark Pratt, Associated Press

BOSTON (AP) – The family of a 4-year-old Massachusetts boy who died after falling from a mall escalator says in a lawsuit that the escalator was in a “dangerous and defective” condition that directly led to the child’s death.

The escalator’s condition was in violation of state building codes, escalator safety standards and the industry standards established by the American Society of Mechanical Engineers, the parents of Mark DiBona of Dudley said in their suit filed Wednesday in Worcester Superior Court.

The suit seeks a jury trial and unspecified damages. Mark fell from a second-floor escalator onto a display case on the floor below in a Sears store at the Auburn Mall on March 11 while shopping with family and friends. He suffered head injuries and died the next day.

WBZ NewsRadio 1030’s Jim Smith reports

He slipped through a gap between the escalator and railing that was wider than allowed by state law, Tom Smith, a lawyer for Mark’s parents, said Thursday. The gap was 6 inches wide while state building code says the gap should be no more than 4 inches wide, he said.

The suit says defendants Sears, Simon Property Group Inc., Schindler Elevator Corp. and Botany Bay Construction were negligent.

A Sears spokeswoman said in an email that the company does not comment on pending litigation. A spokesman for mall owner Simon Property Group said he had no comment. A statement from Schindler, the escalator’s manufacturer, said that while it cannot comment on litigation matters, it is committed to safety and its prayers are with the DiBona family.

A message left with Botany Bay Construction, the Worcester-based contractor that installed the escalator in 2009, was not returned. Plans for installation of the elevator filed with the town called for a barrier to close the gap, Smith said.

“Those plans were either not followed or were not required by Sears or Simon,” he said.

The plans show that the defendants “all recognized the gap was too wide,” he said.

Mark’s parents, Eric and Laura DiBona, were unavailable for comment, but his uncle, Douglas DiBona, read a statement Thursday on their behalf.

“What happened to Mark on that awful day should never have happened,” the statement said.

“Although we can never get Mark back, we can try to make sure that no other family has to endure this kind of pain and loss,” he said in the statement.

Mark’s heart was donated to another boy. The boy’s death sparked re-inspections of escalators around the state.

The Department of Public Safety fired two inspectors, suspended six and reprimanded 26 others after a sweep of all escalators in Massachusetts found 7.5 percent lacked barricades required to cover the gap between the moving staircases and walls or rails.

Some lawmakers have proposed tougher escalator inspection standards.

(Copyright 2011 by The Associated Press. All Rights Reserved.)

Comments (41)
  1. Matt says:

    I don’t know who is to blame here if anyone. As the father of a 4 year old you never let that kid out of your sights or grasp because they will always find a way to get in trouble no matter how secure you may feel the situation to be. Many time the real blame starts with looking in the mirror. I am very sorry for their loss.

    1. BJD says:

      Pretty much exactly what I was thinking…reminds me of the Gun Show lawsuit a few months ago.

    2. shotime says:

      Matt, You got that right!

    3. FugginMorons says:

      I agree but had they not been negligent by violating building codes, this might not have happened. There is a reason those codes exist in the first place. Usually because somethign tragic happened and they realized if we regulate the allowable gap we can reduce these tragedies.

      You gotta follow the law, it aint hard to figure out.

      1. Megaflunky says:

        It says the width was suggested not that it was required. And where were the boys parents while he was playing near the escalator? And does mean that every fence or railing in the world must be closed? This is very sad but I think it was also the fault of whomever he was with for not keeping tabs on him.

      2. FugginMorons says:

        “The gap was 6 inches wide while state building code says the gap should be no more than 4 inches wide, he said.”

        Sounds more like a building code than a suggetsion.

  2. steve says:

    Absolutely agree with the above, one more example of how this country is sue happy. Every spend time in Europe or other parts of the world? We have more safety precautions than any place I’ve been and yet we as a nation sue more than any other. Why? Because parents don’t want to admit they weren’t doing their job as a parent. Kids are kids, they explore and get hurt or in trouble because they don’t know any better. It’s the parents’ job to teach them what they can and cannot do. If you can’t be bothered with watching your children and would rather spend your time picking out cloths, electronics, etc. either don’t have kids or don’t bring them with you to the mall. Ugh this gets me mad. If the kid was leaning up against a wall and the wall crumbled and fell apart and caused his death, okay, I can see a problem with that. But if your not watching your child, letting them crawl all over the place…. shame on you as a parent, don’t blame someone else for your neglect.

    1. FugginMorons says:

      You want to avoid being sued? Don’t violate building codes. It’s not rocket science.

  3. Karen R Mangan says:

    i feel bad for the family of the little boy.. people here are blaming the parent.. the mother was right behind him he had just grab the railing and iit made him loose his balence and he fell… i dont blame the family from sueing

  4. Tim Blake says:

    Can you say Cha-Ching….?

  5. steve says:

    Sue for what Karen, if anything it was an accident… so it’s the mall’s fault because not every square inch of the facility had been covered. Every nook needs a safety harness? If the parents weren’t to blame then it was an accident. Again, I have to go back to saying we as a nation take more safety precautions than anywhere else. Why? Because people are afraid they are going to get sued by someone like you. It was an accident, and yes I feel sorry for the familly for what they are going through. But this is not the malls fault.

    1. FugginMorons says:

      “so it’s the mall’s fault because not every square inch of the facility had been covered” No it’s the malls fault because they were inviolation of building codes. it’s not fantasy, it’s law. Not real hard to prove fault.

      I know you want to be angry at “sue-happy America” but violating building codes ain’t a good idea… savvy?

  6. emom says:

    Escalators are not safe for children , so many things can happen.. I rather take an elevator … As much as this was a tradegy, you have to wonder what truely happened, I wonder if there was a store video or mall video,,Was there blame with the inspectors sure, But some are so right this country is extremely SUE happy…

  7. steve says:

    stop blocking my comment CBS, there’s nothing wrong with what I’m saying!

    1. massman says:

      You haven’t said one thing right yet.

  8. massman says:

    I couldn’t disagree more with the statements above. I only hope the parents don’t read them. I have two young children, and can’t imagine how devastated this family must be. There was clearly fault belied on the safety inspectors. There was no barricade, where there was supposed to be a barricade. For people on here to insinuate, that this was somehow the fault of the parents, is disgusting. Whatever this family receives for compensation will mean nothing to them. I’m guessing many of you also feel that DJ Henry’s parents should just get over his death and move on.

  9. Steve says:

    Okay, since they don’t want to post my comment I will rephrase… State code is 4 inches, they said the space is 6 inches… take out a ruler and look at the difference between 4 inches and 6 inches, seriously, look. Now you’re going to tell me that a child can “easily” slip through 6 inches before a parent standing right next to them could grab them, but there’s no way he could fit through 4 inches? Suuuuure, okay lawyers

  10. steve says:

    funny you say that massmom, because there seem to be plenty of peope on here that agree with what I’m saying

  11. steve says:

    and just because you don’t agree with what I’m saying doesn’t mean I’m not entitled to say it

  12. steve says:

    I’m the first one on this topic that stated this nation is sue happy..
    “But some are so right this country is extremely SUE happy…” Your own words contradict “You haven’t said one thing right yet”

  13. metoo says:

    I’ll bet that all of you posters that are saying the parents are at fault, would sing a different tune, if it was YOUR child that died. The two inspectors didn’t lose their jobs, because the State thought the parents were at fault either.

    1. Willow says:

      It wouldn’t have happened to one of my children because they were raised at a time when children actually listened to their parents because parents meant it when they said no. People let their children run wild in stores, restaurants, etc. It’s a miracle more children aren’t accidentally killed.

  14. Willow says:

    I’m sorry for the loss of this precious child, but have any of you been in a mall or any other store with a mother with more then one child and watch the chaos? You’re only hearing part of the story. My SIL works at that store, and there is enough blame to go around. One thing does bother me, however, when people make a statement like the one in this topic. How can making a lot of money from the death of your child stop it from happening to another? Does this family plan on using the money to educate the public on how important it is to keep their child/children under their care at all times while out in public?

    1. massman says:

      You and Steve are two peas in a pod. How thoughtless of a statement to say, “It wouldn’t have happened to one of my children…”. How low of a person are you, to make such a chilling statement. And you are the same person preaching that people who abort fetuses, are “baby killers”.

  15. emom says:

    I do feel bad for this family,, But as another poster stated Kids run around the stores, dart in and out in front and in BACK of people, In many cases almost knocking people over.. I had the displeasure of a little boy wildly running around darting around under the racks and came out in front of my mother ,,,, SO BUT THAT IS PURE LACK OF RESPECT FROM ANYONE ,,,,ESPCEIALLY A CHILD.. Where was the mother chit chatting with the sales clerk about 30 feet away..,… not even noticing that her precious bundle of joy if raise havoc… Normally I would have just brushed it off, BUT NO NOT THIS TIME. My mom is disabled and has a cane. So I made a point to yell out loud as I walked passed this careless mother and made a comment as to please watch your kid he almost knocked over a handy cap person…. She smiled and said ok thanks and continued to chit chat….really now are we so desensitized to our own kids that we totally Just throw them to danger… If there was some possible fault with the mother and the store and the inspectors ,,, It will come out in the court hearing…. Regardless, we all have our opinion,,, after all many of us did much the same with the kid and the Uzi ….

  16. tsal says:

    Kids are out of control in stores – SOME KIDS. Sadly, because the building codes were violated, the parents could have been holding the child’s hand and still had little luck in keeping him from falling in a spot that SHOULD HAVE BEEN BY LAW covered. I understand we are sue happy but that absolutely does not make every suit unnecessary nor does it give anyone the right to assume they know what they do not. We have no idea what the situation is yet we are presuming to blame the parents. I am a parent and a grandparent and find this upsetting on every single level. These parents have suffered the greatest loss there is and it could have been avoided had the store or mall or construction company done what they should have.

    When the tiles fell on the car and killed the woman in the Boston tunnel, did we say that the car was driving too fast or too slow and perhaps would not have been in that exact spot at that exact time when the tile did fall? Or did we blame the construction company – WHERE THE BLAMED SQUARELY BELONGED.

    1. Steve says:

      Okay, first I have to say I absolutely feel for this family. I’m not making these statements with the intent of sounding like I don’t feel for the family. Loosing a child is something no parent should ever have to face. With that said, I have to ask how you can make a comment like
      “the parents could have been holding the child’s hand and still had little luck in keeping him from falling in a spot that SHOULD HAVE BEEN BY LAW covered”?
      WHAT!? We’re not talking about a 300 pound person here, it’s a kid! If you were walking along with your kid holding your hand and he/she tripped and started to fall, are you telling me that you don’t have enough strength to pull up on the hand that you’re already holding (according to your statement, not the article or situation at hand) and stop him/her from falling? Were they in violation YES, should it be remedied YES. But again, a child, even his age, DOES NOT just slip through a 6 inch gap, They sqeeze through it because they were playing around. To say a 4 inch gap does not provide enough clearance for a child to fit through, but can SLIP through a gap just 2 inches wider? Nope, sorry don’t buy it. Maybe they can’t fit through 4 inches, and mabye they can SQEEZE through 6 inches, but don’t sit there and tell me that a kid just slips through 6 inches of space.

  17. tsal says:

    As far as the child and the Uzi – the father put the gun into his child’s hands. There is no comparison here in my opinion.

  18. sean says:

    It’s a sad loss and I feel for the family. I agree that the family needs to be accountable for their child, but their needs to be some accountablility for the companies as well since they clearly did not follow building code.

  19. tsal says:

    The company violated code for whatever reason. If the only price it has to pay for breaking the law is a settlement, then it should be feeling very lucky. It pales in comparison to the price the child’s family has to pay. Had the company and the mall and the inspectors done what they should have, the little boy would be here today. It has absolutely nothing to do with parenting – nothing.

    1. steve says:

      I just don’t understand how you can say it has nothing to do with the parents. I’m not saying it’s completely their fault, as yes the gap was bigger than code. But if the parents weren’t allowing the child to fool around on/near and escalator and or railing then he wouldn’t have been in the position he was in to get hurt in the first place. Even emom who I don’t agree with everything she’s saying, made an excellent point. Escalators are not the safest things, esp for a child. So don’t let your kid mess around near them.

      1. tsal says:

        it takes two seconds for a child to get ahead of you. Short of putting a child on a leash or locking it in a room or wrapping it in bubble wrap, kids are going to explore. There is no perfect parent and there are no perfect children. It bothers me that people have decided the child was fooling around and the parents were neglectful. No one has a right to judge these parents. Not one person here knows what kind of parents they were but somehow far too many have become the authority on parenting and on the parents of this child.

        The ONLY blame goes to the company, the mall and anyone else involved in breaking the law that clearly stated a barrier was to be placed between the two escalators. They all broke the law and because of that a child is dead.

      2. steve says:

        People (I) decided the kid was fooling around one, because that’s what kids do; and two, because even a child this small DOESN’T slip through a 6 inch gap. Even a small boy has a head big enough that it doesn’t just slip through 6 inches.

  20. Emma Jay says:

    If these people were suing for the medical bills, funeral expenses, and to ensure that this mall and other malls correct their safety gaps….that would be one thing. Since they won’t disclose what they’re suing for beyond “unspecified damages” it leaves the reader to assume they’re suing for all of the above and more, which means lots and lots of money for “emotional trauma,” “loss of enjoyment,”…we all know the usual reasons. I don’t think having a mattress stuffed with cash taken via judicial fiat would help me sleep better at night after I lost a loved one, but everyone is different. That doesn’t make it right and it doesn’t mean I won’t call them out for being opportunists.

  21. massman says:

    When I take my children to a public place, I expect to be able to let go of their hand, without them dying. I’ve read some of the most ignorant comments, Ive ever read. Mostly from steve. As a parent, I can’t imagine losing a child. Never mind reading about people blaming you for it. And now another jerk, Emma Jay, has to spew more vile. “Emotional trauma”, “loss of enjoyment”. Emma, I”m not even going to try to explain how wrong you are. The comments from you and steve, scream of your ignorance and lack of understanding.

    1. shotime says:

      Massman, Malls are not playgrounds and are certainly not a public place meant for children to run amuck! Hold your child’s hand in a mall, especially when nearing an escalator! Parents need to be held accountable for the safety of their children!

      1. massman says:

        You, are an idiot. If five children died that day, the same way, would it still be the parents fault? If the mall decided, like many of you, that it was the parents fault, and decided not to fix the gap, and a child died the following day, is it still the parents fault? There was no evidence of this child “running amuck”. Although I guess death is acceptable to you if he was, regardless of whether or not the safety regulations were met. There is no law requiring parents to hold their child’s hand in a mall. And death is unacceptable, regardless of whether or not the parent is holding their child’s hand. Think, before you post.

  22. ard says:

    Ok as working in early child care with toddlers. i have to say they are very busyand active. children do things that us adults would know to be careful about. now i have had a child just trip on a mulched play ground and fractured his arm. now the parent sued the center i worked for. when he just happened to lose his balance and fall at thewrog angle and broke his arm on the playground. but to tell you she had to pay no where as much in medical bills as these poor parents had to pay. nor did this mother lose her child, but this family did. what i’m trying to say is that us americans are all so sue happy but sometimes there is a need to sue espicially what happened to this little boy, and it shouldn’t have happened but it did. but i’m also not saying that the parents are all right in their desicion to sue but i’m just saying that sometimes things can happen so quick that we can’t control the situation,and it should never happen. but this tragic event happened hopefully this lawsuit will prevent an reoccurence.

  23. dadsfavor8 says:

    has ANYONE here even considered the fact that this little boy was being PULLED DOWN while the parents were being forced UP an escalator??? There became a wall between them. Even if they had been holding his hand…they would have been immediately separated by force in less that a split second and surprised with no time to react. Even if you have the child’s hand…you are not expecting this to happen and it’s not like you have a cement grip on this kids hand…you would have no reason to think you need to be holding a death grip on him…no pun intended…just trying to make a valid point.

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