Report: Lawsuit filed over escalator death in Sears store

New York City -- The family of a 4-year-old Massachusetts boy who died after falling from an escalator at the Auburn Mall, in Auburn, Mass., have filed a wrongful-death lawsuit that alleges the escalator was "dangerous and defective" and did not follow state codes or the blueprint for its installation.

The child, Mark DiBona, fell from a second-floor escalator onto a display case on the floor below in a Sears store on March 11 while shopping with his family. He suffered head injuries and died the next day. The family says he would still be alive if the companies involved in the installation and operation of the escalator followed state rules and their own construction plans in 2009.

The suit seeks a jury trial and unspecified damages for negligence and gross negligence. It names Sears, Simon Property Group, Mall at Auburn LLC, Schindler Elevator Corp., and Botany Bay Construction Co., the contractor that oversaw the installation of the escalator, as defendants.

The boy slipped through a gap between the escalator and railing that was wider than allowed by state law, according to W. Thomas Smith, a lawyer for the family, the Associated Press reported. The gap was 6-inches wide while state building code says the gap should be no more than 4-inches wide, Smith said.

The suit alleges that 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.

According to Smith, the installation plans of the escalator originally 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 Associated Press reported.

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% lacked barricades required to cover the gap between the moving staircases and walls or rails, according to the report.

None of the parties targeted in the suit would comment on the pending litigation.

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