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Bergen County

The plaintiff contended that the trapeze/swing set on which the four-year-old infant plaintiff was sitting was defective in that the seat contained a sharp edge which, when attached to the unprotected hook connecting the seat/bar, created a dangerous pinch point. The plaintiff contended that as a result, the child’s upper arm became caught on the pinch point as she attempted to jump 4-5 feet to the ground from the device, causing a nine cm. long laceration. The defendant’s in-house expert engineer contended that the device was properly designed and met ANSI standards. The plaintiff’s expert disputed this opinion and maintained that the pinch point was such that ANSI standards were violated. The plaintiff’s expert further contended that the pinch point could have been easily protected with a sheath or other covering device. The defendant contended that the infant plaintiff suffered an unforeseeable accident. The plaintiff’s plastic surgeon produced photographs taken shortly after the accident depicting the initial laceration. The physician maintained that the plaintiff currently has a 5 cm. long scar which will remain permanently and that she will permanently suffer a loss of sensation in the immediate area of the scar because of damage to nerves near the surface. The defendant’s expert plastic surgeon contended, and the plaintiff’s expert did not dispute, that there was no muscle or deep nerve damage and that the child would suffer no loss of use of the arm. The mother testified that the child has become very skittish and overreacts upon minor trauma such as cuts and bruises. The plaintiff produced no psychiatric or psychological testimony. The plaintiff introduced evidence of special damages of $________. The parents contended that they had witnessed the accident and brought a claim for their emotional distress under Porte vs. Jaffee. The defendant argued that the injury to the child was not sufficiently severe to warrant the submission of the parent’s claim for emotional under Porte. The plaintiff countered that the child was hanging for several minutes by her arm and maintained that such observations were sufficient to submit this issue to the jury. The defendant argued that in view of the absence of any treatment for the parents and the absence of any evidence other than that forthcoming from the parents themselves to support this claim, there was insufficient proof of emotional distress to submit to the jury. The Court dismissed this aspect at the close of the plaintiff’s case. The jury found for the plaintiff and awarded $________ for the child’s injuries and $________ to the parents for medical bills. Fontanetta vs. Sears and Turco, Inc. Docket no. L-________-86; Judge Birger Sween, 9-22-89. Attorney for plaintiff: Katherine G. Houghton; Attorney for defendant: John G. Guyet. Plaintiff’s expert engineer: Herbert Aronson from Forest Hills, N.Y. Defendant’s in-house expert engineer: William R. Baynes from DeQuois, Ill. Plaintiff’s plastic surgeon: Drew Tuckman from Fairlawn. Defendant’s plastic surgeon: Gregory Raucher from UMDNJ.

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