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Maker of Stroller Found Not Liable in Boy's Death : * Courts: Verdict comes more than four years after the 5-month-old boy died. His head apparently became caught between the armrest and seat.

February 23, 1992|MATHIS CHAZANOV | TIMES STAFF WRITER

SANTA MONICA — A Santa Monica jury has ruled that Aprica, a manufacturer of baby strollers, is not responsible for the death of a 5-month-old boy whose head apparently was caught between the armrest and seat of a stroller when his parents left him napping after a walk.

Testimony indicated that the boy, lying face down and unrestrained by the safety straps that came with the carriage, moved in his sleep, causing his legs and torso to slip through an opening in the front of the stroller. The cause of death was "asphyxiation by neck compression," the coroner ruled.

The two-week civil case ended Wednesday with a heart-rending outburst from Gail Pekelis, mother of the dead boy, who had been one room away, in the kitchen, at the time of the tragedy, with an intercom on so she she could monitor the baby.

Sobbing, she pummeled her husband's chest with her fists and doubled over in agony after forewoman Gretchen Hays said nine of 12 jurors found no preponderance of evidence to prove that the stroller was defective.

She ran into the corridor and screamed, "My baby is dead! What will they do when the next baby dies?"

Sheriff's deputies kept spectators away as her husband, Haim, ushered his wife to the cafeteria upstairs. A few jurors also cried.

The verdict came more than four years after the Oct. 24, 1987, death of Benjamin Pekelis. The Pekelises have since had two more boys. Gail Pekelis also has two daughters from a previous marriage. The family, which lived in Pacific Palisades at the time, has moved to Mar Vista.

The jury of 10 women and two men deliberated for a day and a half after hearing two weeks of testimony in the case, coming back with a question: Should the stroller's instruction booklet, which Haim Pekelis said was incomprehensible, be considered part of the design of the product?

After meeting in his chambers with attorneys for both sides, Superior Court Judge Robert T. Altman said, "The answer is no." Less than an hour later, the jury announced its verdict.

According to one juror, who asked not to be identified, the booklet did not show how to use the safety straps when the carriage was in the flat position. It was flat when Benjamin died. Instead, the instructions dealt with how to use the stroller, a 1986-87 La Belle model, with the baby sitting up.

"Even though, if you makeshifted it (the restraining mechanism) you could work it, I don't think it's the responsibility of the customer to make it work," said the juror, one of three who voted to find the product defective.

But jury forewoman Hays said the rest were not persuaded.

"We found that (the restraint mechanism) was attached. It wasn't used. It was covered by the blanket," she said. "The parents said it wasn't usable, but we felt it was for this infant at the time of his death."

During the trial, the Pekelises' attorney, Lawrence P. Grassini, introduced evidence of a patent received two years before Benjamin's death by Aprica/Kassai, the Japanese company that makes the strollers.

The patent is for a device that would close off the open front end of the carriage when the passenger is lying flat, providing "better safety for a baby," in the language of the patent application.

Grassini said the device, never marketed, could have saved Benjamin's life. He suggested that it may have been withheld to avoid the appearance of admitting that the stroller was unsafe as built.

A major motive for the Pekelises' suit was their passion to see the stroller redesigned, he said.

But Thomas B. McNutt, attorney for Aprica/Kassai and several other defendants, said that the carriage met a voluntary industry safety standard, and that Benjamin was the only baby that ever strangled in an Aprica product.

Had the Pekelises not left their son alone in his room, or had they used the restraint system, the accident would not have happened, he said.

"This was not about product safety; this was about guilt," he said after the trial. "Every stroller out there is basically designed the way this one is."

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