ALBUQUERQUE, N.M. — A federal jury in Albuquerque found a 2001 Volvo defective and found nearly $10 million in damages after a toddler suffered permanent brain damage from activating a power window that trapped her neck and deprived her of oxygen.
The jury heard two weeks of testimony before U.S. District Judge Kenneth Gonzales of Las Cruces in the product liability case, before finding damages calculated at $9,686,225 for past medical expenses, future lost earnings and care of the child. The family is eligible to collect nearly $7 million of that amount.
The lawsuit was filed in 2012 by the Branch Law Firm on behalf of Andres Rivera, the father of the injured girl, Alana.
James Ragan, a Corpus Christi lawyer who represented the family at trial, said Alana’s father had gone to pick up the girl’s elder brother at school in Santa Fe on Sept. 27, 2010, and was tired after a day of doing yardwork.
Alana, then not quite 2 years old, was fussy, so he let her out of her child seat and he dozed for a few minutes on a warm afternoon with the car still running.
The girl somehow activated the right front window switch, and her neck was caught as the power window rolled up. A woman who saw the child’s head hanging outside the window pounded on the windshield to alert the dad.
But by that time, the child was limp and motionless. Estimates were she could have been trapped for two to four minutes.
In court documents, the family claimed the window switch was susceptible to inadvertent action by a child’s knee or some other body part and that Volvo “affirmatively misrepresented” the switch’s features in its literature by saying it would reverse if it encountered an obstruction. Ragan said the window in fact goes down after encountering an obstruction only under certain circumstances.
Volvo Cars of North America said it was the father who was at fault and that it had never encountered any similar incident in a Volvo car. It said the design and operation of the window switch were reasonable and appropriate – in fact, state of the art in 2001.
Volvo made design changes in later models of the Volvo S60 sedan but never made a recall or retrofit of the switch, Ragan said.
Neither Volvo headquarters nor attorneys for the company responded to a request for comment by the Journal. “The jury question was how much fault was shared between parent and the manufacturer,” Ragan said Friday.
Ragan said Volvo’s contention at trial was, “It was all the dad’s fault. But Volvo witnesses agreed in cross-examination that it was a shared responsibility. There’s not a single parent who has watched a child every second of every day.”
The jury assigned partial fault to the dad – 30 percent – but found Volvo 70 percent at fault.
It said the 2001 Volvo S60 was defective and was a cause of the child’s injuries.
Damages were calculated at $9,686,225 for past medical expenses, future lost earnings and care of the child, who one witness testified has an IQ of 57 and will never be able to live or work independently. The comparative fault calculation under New Mexico law means Volvo Cars of North America is liable for $6.7 million of the total.
Alana spent a month in the hospital after the accident, and her parents and therapists have worked with her since then to regain some of the abilities she once possessed.
She was in kindergarten last year and is again this year, Ragan said. Because her executive function was affected, she struggles with speech because her brain can’t always direct her tongue to the correct sound, even when she knows a word, and she speaks in three- or four-word sentences.
Ragan praised the judge, the jury and the girl’s parents, who he said had lost their first child to brain cancer.
“I’ve been amazed at their ability to weather difficulties and be a family,” he said. “I’m astounded at their ability to carry on.”