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$1,750,000

18-Wheeler Collision

Settlement

$1,467,000

TRAUMATIC BRAIN INJURY

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$1,070,000

AUTO ACCIDENT 

Jury Verdict

Child Fell Off Inflatable Ride and Cracked Skull

Harris County

Premises Liability

Playground — Worker/Workplace Negligence —Fall from Height

Child fell off inflatable ride and cracked skull

Mixed Verdict $1,485,000

Case

Kimberly Croghan, individually and as next friend of Carter Croghan v. Bounce Zone Inc., d/b/a Pump It Up of The Woodlands, PIU Management LLC, and John Steidl, No. 2012-04647

Court

Harris County District Court, 157th, TX

Judge

Randy Wilson

Date

10/10/2014

Plaintiff Attorney(s)
Eric D. Nielsen (lead), Nielsen & Mukerji LLP, Houston, TX
Leonid Kishinevsky, Nielsen & Mukerji LLP, Houston, TX
Sam K. Mukerji, Nielsen & Mukerji LLP, Houston, TX
Defense Attorney(s)
David McFarland (lead), Thompson, Coe, Cousins & Irons, Dallas, TX
Brandon Berg, Thompson, Coe, Cousins & Irons, Houston, TX
Cory Reed, Thompson, Coe, Cousins & Irons, Houston, TX
Facts & Allegations

On Aug. 1, 2010, plaintiff Carter Croghan, 9, and his little brother went with their grandmother to Pump It Up of The Woodlands, a children’s play business with indoor inflatable rides. Pump It Up had three large rooms, known as arenas, with four inflated objects in each. Carter and his brother were playing on the “Chaos,” an inflatable obstacle course that included a slide, and their grandmother was in the room watching with other adults. An employee was in the room. Carter and his brother climbed onto a part of the back of the inflatable, a part that was not intended for children to play on. Carter told his brother to get down, and when his brother pushed off to descend, Carter fell 7 feet onto the concrete below and landed on his head, fracturing his skull.The business was owned and operated by Bounce Zone Inc., operating as Pump It Up of The Woodlands. The owner of Bounce Zone was John Steidl, and the plaintiffs claimed that Bounce Zone had a franchise agreement with PIU Management LLC, Tempe, Arizona.

The plaintiffs also alleged that the inflatable was designed and manufactured by Cutting Edge Creations Inc. and sold by Cutting Edge, Great Air Inc., N-Flatables Inc., and Whatru Holding LLC.

Carter’s mother, on behalf of herself and the child, sued Bounce Zone, PIU, and Steidl for negligence, negligence per se, gross negligence, premises liability, and DTPA violations. The plaintiffs did not submit the negligence per se or the premises claim to the jury. The plaintiffs also sued Cutting Edge, Great Air, N-Flatables, and Whatru Holding, but by the time of trial, they had been removed from the case for a long time.

The plaintiffs claimed that Bounce Zone falsely represented that it provided a safe, supervised play experience for children.In addition, plaintiffs’ counsel argued that the area in question was easily accessible to children and there was no fall protection, such as a mat or a net. The plaintiffs further claimed that Bounce Zone’s lack of supervision; its placement of the obstacle course; the lack of employee supervision and training; and the lack of fall protection violated Texas’ Amusement Rides Act, ASTM (American Society for Testing and Materials) standards, the manufacturer’s instructions, and Bounce Zone’s internal procedures.

Plaintiffs’ counsel further argued that, based on the testimony of former Pump It Up employees, the defendants knew that children sometimes climbed onto the area in question.

In closing argument, plaintiffs’ counsel argued that Bounce Zone and Steidl were about 80 percent responsible and that PIU Management was about 20 percent responsible. If the grandmother bore any responsibility, plaintiffs’ counsel argued, it was no more than 10 percent, and the child was not responsible because of his age and because other children played on the back of the inflatable just as Carter did.

The defendants denied the allegations. In addition, the defense asserted a design defect by Cutting Edge.

Steidl further denied individual liability, and PIU further argued that it was not the franchisor at the time of the incident and therefore could not be held liable.

Defense further argued that Carter’s grandmother should have been watching him more carefully and that Carter should have known better than to climb onto the area in question.

Injuries/Damages

aggravation of pre-existing condition; anxiety; blunt force trauma to the head; brain damage; cognition, impairment; depression; fracture, skull; head; hemorrhage; memory, impairment; subarachnoid hemorrhage; traumatic brain injury

Carter fell 7 feet and landed on his head on concrete. He was screaming hysterically at the scene and could not hear in his right hear. His mother arrived and took him to her workplace, a nearby auditory treatment facility, where it was found that the ear was filled with blood. He was then taken to an emergency room in The Woodlands and was then transferred to Texas Children’s Hospital, where he stayed overnight.Carter sustained a fracture to the right side of his skull, a traumatic coup-contrecoup injury to the brain, a subarachnoid hemorrhage, and two other brain hemorrhages. He claimed permanent brain damage, with short-term memory loss and problems with impulse control, anger and processing speed. Also, plaintiffs’ counsel argued that Carter’s IQ went down, although it remained above average, and his prior anxiety and depression were aggravated by the injuries.

The fracture healed. Carter underwent counseling, as well as a CT scan every couple months to monitor his condition. He was also put on antidepressants.

The plaintiff’s medical said the brain damage was permanent.

The plaintiffs further claimed that Carter would be unable to play football. He played select baseball, but he was tall and strong and would have played football but for his injuries, his mom claimed.

The plaintiffs’ attorneys called many fact witnesses on damages, including Carter’s mother, father, stepfather, grandmother, aunt, and babysitter.

Before the incident, Carter was already in counseling for anger issues and some anxiety and depression. He had been going about once a month for six to eight months, up until a month or two before the injury. However, that counselor opined that Carter was “a completely different person” after the accident.

The plaintiffs’ life care planner opined that Carter would need approximately $1 million in future care. The plaintiffs further claimed that Carter’s future earning capacity would be reduced by $300,000 to $400,000 and that he would be unable to attend college.

They also sought damages for past and future physical pain and mental anguish and physical impairment, as well as punitive damages. In closing argument, plaintiffs’ attorneys argued for up to $10 million total, including punitive damages and additional DTPA damages.

The defense contended that Carter sustained no permanent injury and that, once his injuries healed, he was in the same condition as before the incident.

Result

The jury found negligence by Bounce Zone, Carter and the grandmother only. The jury found no negligence by PIU or Steidl and found no design defect in the ride at the time it left Cutting Edge’s possession that was a producing cause of the injury.

The jury found comparative responsibility of 80 percent on Bounce Zone, 15 percent on Friedrichs, and 5 percent on the boy.

The jury also found that Pump It Up of The Woodlands engaged in a false, misleading, or deceptive act or practice that was relied on to Carter’s detriment and that was a producing cause of damages to him. The jury further found that Pump It Up engaged in this conduct knowingly.

The jury awarded Carter damages of $1,485,000. The plaintiffs elected the remedy for the DTPA violations, which was actual damages of $312,000 and additional damages of $1 million.

Regarding gross negligence, the jury was instructed that any finding on that issue would have to be unanimous, and the jury did not make a finding.

The jury also did not find any unconscionable action or course of action that was a producing cause of damages to Carter. The total award was $1,485,000, which was reduced to $1,312,000.

Carter Croghan
$250,000 past medical cost
$150,000 past physical impairment
$10,000 future physical impairment
$25,000 past physical pain and mental anguish
$50,000 future physical pain and mental anguish
$1,000,000 additional damages for knowing DTPA violation
$1,485,000
Insurer(s)

AIG (excess carrier for all defendants)

Trial Details
Trial Length: 9 days
Trial Deliberations: 4 days
Jury Vote: 10-1
Plaintiff Expert(s)
David Axelrad, M.D., psychiatry, Houston, TX
Michael Deitch, Ph.D., psychology/ counseling, Spring, TX (treater; video deposition) Joe G. Gonzales, M.D., life care planning, San Antonio, TX Kenneth E. Lehrer, Ph.D., economics, Houston, TX Lee Pollack, M.D., neurology, Houston, TX (treater) Larry Pollock, Ph.D., neuropsychology, Houston, TX (treater) Mitchell Young, M.D., child psychiatry, Houston, TX
Defense Expert(s)
Nancy Nussbaum, Ph.D., neuropsychology, Austin, TX Brian Woodruff, M.D., pediatric neurology, Ann Arbor, MI

Editor’s Note This report is based on information that was provided by plaintiffs’ counsel and defense counsel. –John Schneider