BOSTON, Massachusetts – The family of a small boy that died following an escalator accident at a Sears store in March has filed a wrongful death lawsuit.
The family of four year-old Mark DiBona, of Dudley, who died tragically after falling through a gap in an escalator in the Sears store at the Auburn Mall, has filed a lawsuit in Worcester Superior Court.
The lawsuit names the store, mall owner, the escalator builder and contractor as defendants. Eric and Laura DiBona, Mark’s parents, claim the Simon Property Group, Mayflower Auburn LP, the Mall at Auburn LLC, Sears Roebuck and Co., Botany Bay Construction Co., and Schindler Elevator Corp., are responsible for their son’s death. They seek unspecified damages for negligence.
“It does not change the tragedy that occurred on March 11 of this year. What happened to Mark on that awful day should never have happened,” said the boy’s uncle, Douglas DiBona.
Mark died after falling through a six-inch gap between the handrail of the elevator and the posts that hold up the rail. According to state building codes, gaps of over four inches are prohibited.
State officials suspended the two inspectors who certified the escalator was in compliance with safety codes, when it was not, and have since moved for their termination. The state has 51 escalator inspectors, including the two that are being terminated. After a re-inspection of the state’s 927 escalators following Mark’s death, it was revealed that 69 did not have any barricades, 34 were missing bottom deck barricades and 35 had either top decks missing barricades or both top and bottom decks missing.
According to the family’s attorney, W. Thomas Smith, the plans filed with the Auburn Building Code Enforcement department for a construction permit for the escalator replacement at the mall in 2009 did not call for a gap but when the escalator was built, the gap was dangerously large.
Smith says that Sears and Simon Property are at fault for not ensuring the proper safety of the escalator and that the responsibility for complying with the building code lies with the builder and the owner.
Judge John S. McCann has granted a temporary restraining order to ensure that video recordings from Sears and the mall operators is preserved.
Mark’s family has been filed with overwhelming grief but at least hopes to prevent an accident such as this from occurring again.
“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,” said Douglas DiBona.
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Tags: Auburn Mall, Awful Day, Bay Construction Co, Boston Massachusetts, Botany Bay, Bottom Deck, Code Enforcement Department, Dibona, Escalators, Handrail, Inch Gap, Lawsuit Names, Roebuck And Co, Schindler Elevator Corp, Sears Roebuck And Co, Sears Store, Simon Property, Simon Property Group, W Thomas Smith, Wrongful Death Lawsuit