The family of a 4-year-old Massachusetts boy who died after falling from a mall escalator says in a lawsuit that the escalator was in a "dangerous and defective" condition that directly led to the child's death.
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, the parents of Mark DiBona of Dudley said in their suit filed Wednesday in Worcester Superior Court.
The suit seeks a jury trial and unspecified damages.
Mark fell from a second-floor escalator onto a display case on the floor below in a Sears store at the Auburn Mall on March 11 while shopping with family and friends. He suffered head injuries and died the next day.
He slipped through a gap between the escalator and railing that was wider than allowed by state law, Tom Smith, a lawyer for Mark's parents, said Thursday. The gap was 6 inches wide while state building code says the gap should be no more than 4 inches wide, he said.
The suit says defendants Sears, Simon Property Group Inc., Schindler Elevator Corp. and Botany Bay Construction were negligent.
A Sears spokeswoman said in an email that the company does not comment on pending litigation. A spokesman for mall owner Simon Property Group said he had no comment.
A statement from Schindler, the escalator's manufacturer, said that while it cannot comment on litigation matters, it is committed to safety and its prayers are with the DiBona family.
A message left with Botany Bay Construction, the Worcester-based contractor that installed the escalator in 2009, was not returned.
Plans for installation of the elevator 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 plans show that the defendants "all recognized the gap was too wide," he said.
Mark's parents, Eric and Laura DiBona, were unavailable for comment, but his uncle, Douglas DiBona, read a statement Thursday on their behalf.
"What happened to Mark on that awful day should never have happened," the statement said.
"Although we can never get Mark back, we can try to make sure that no other family has to endure this kind of pain and loss," he said in the statement.
Mark's heart was donated to another boy.
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 percent lacked barricades required to cover the gap between the moving staircases and walls or rails.
Some lawmakers have proposed tougher escalator inspection standards.