Jury rules in ATV death case
6:35 PM, Mar. 21, 2011
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LEBANON - Warren County’s largest civil lawsuit – a wrongful-death case seeking $20 million – ended with a mixed verdict that means no money will be awarded to the parents of a dead 10-year-old girl. After deliberating about 12 hours, a Warren County jury Monday declared an all-terrrain vehicle was defective, as John and Tammie Sand of Lebanon had claimed. But the jury decided the ATV was not the “proximate cause” of the death of the Sands’ daughter, Ellie, after she went riding on a Yamaha Rhino 660 ATV in 2007.
Yamaha issued a news release declaring the verdict a victory: “This verdict in favor of Yamaha marks the sixth time overall that a jury has rejected plaintiffs’ claims regarding the Rhino.”
The company is facing hundreds of lawsuits similar to this one across the nation, though many have been consolidated into group actions filed in federal courts, said Michael Roberts, a lawyer for the Sands.
He said the jury’s verdict wasn’t a total victory for the manufacturer.
“It’s significant that a jury found the product defective despite Yamaha’s extensive arguments to the contrary,” Roberts said. “The jury concluded that ‘Your product’s defective, Yamaha, but we think that Nils’ driving was more defective,’” referring to Nils McElroy, the 21-year-old Midland, Ohio, man who was driving the ATV.
McElroy pleaded guilty to a negligence charge of vehicular homicide. He was fined $1,000 and sentenced to 90 days in jail.
While pleased with the “defective” ruling, the Sands’ are “disappointed that people who had no knowledge of the defect were more responsible for Ellie’s death,” Roberts said.
Ellie was the front passenger on the ATV on Oct. 27, 2007, when it flipped and pinned her to the ground during a church picnic in Oregonia. None of the five occupants wore helmets; it was uncertain whether Ellie wore a seat belt.
“Drivers and passengers should at all times wear helmets, protective gear and the vehicle’s three-point seat belts,” the company said, calling the Rhino “a safe and useful off-road vehicle when driven responsibly.”
“The testimony and evidence during the trial showed that this tragic incident had nothing to do with the design of the product, and underscores the importance of following the safety recommendations on our products and in the owner’s manual,” the company’s news release said.
Meanwhile, Ellie’s parents remain committed to work with industry groups and the Consumer Product Safety Commission “to get this thing fixed,” Roberts said.
Since Yamaha made some changes in the vehicle’s design, including widening its wheel base, there had been no deaths reported on the revamped Rhino, Roberts said. But on earlier models, there were at least 1,300 reported injuries and 95 deaths, Roberts said. Evidence rules prevented jurors from knowing about the deaths that happened after Ellie’s. She was the 28th person to die after riding a Rhino, Roberts said.
“Evidence rules were applied properly by the judge but it’s just unfortunate that the jury didn’t get to know everything,” Roberts said.
Roberts said he and his clients are exploring whether they have any other options, including an appeal. At one point during the trial, Judge James Flannery chastized Yamaha for using a private court reporter to provide transcripts to the company’s witnesses, despite a “separation of witnesses order” designed to prevent witnesses’ testimony from being affected by other witnesses’ statements, Roberts said.
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