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Retailer blamed in pool toy suit

The mother of a boy who was impaled by a dive stick and needed surgery says Wal-Mart ignored a recall order for the product.

By CHRIS TISCH
Published October 11, 2006

ST. PETERSBURG — Six years ago, 3-year-old Marcus Zunner was playing in the shallow water of an inflatable swimming pool in the back yard of his Largo home.

Marcus slid down a slide into the pool, where a long, plastic toy called a dive stick impaled him, tearing through his colon.

The injury required intensive surgeries to clean some of his internal organs.

Opening statements began Wednesday in a civil lawsuit in which Marcus’s mother is suing the manufacturer, Clearwater-based Florida Pool Products Inc., and Wal-Mart, where the dive sticks were sold.

Kimberly Zunner’s attorneys say both companies ignored a national recall order after several other children were harmed by the dive sticks in much the same way.

“It was not supposed to be on the market at all,” Justin Johnson, Zunner’s lawyer, told jurors. “It was a hidden defect … children were getting impaled by these sticks. There was a rash. Our child was the ninth who got hurt.”

Zunner’s lawyers declined to say how much money they are seeking, but it’s sure to be millions.

Johnson and several of the other attorneys representing Kimberly Zunner were the attorneys for a 7-year-old girl who lost three fingers in an escalator accident at a St. Petersburg Dillard’s in 2002. Dillard’s settled for $15-million after a two-week trial.

The Zunner trial is expected to last about three weeks.

Lawyers for Florida Pool and Wal-Mart said steps were taken after the recall to ensure the dive sticks were safe.

That included inserting a ring into the package that made the sticks lie on their sides rather than stand straight up.
Wal-Mart lawyer Michael Reed said the company removed the sticks from its stores and sent them back to Florida Pool.

“Wal-Mart took all the necessary steps to get this product out of the stream of commerce voluntarily,” Reed said.

Florida Pool lawyer Daniel Santaniello said his company worked with the Consumer Product Safety Commission to develop the rings that made the sticks safe. Once the rings were inserted into the package with instructions, the dive sticks were sent back to Wal-Mart and put back on the shelves.

Shortly after, Kimberly Zunner bought a package of the sticks, which are intended for deeper in-ground pools.

Santaniello suggested Kimberly Zunner erred when she bought the product, which came with a warning suggesting only children ages 5 and above use it. He said Marcus Zunner’s grandparents, who were babysitting him the day of the accident, also weren’t watching the boy closely enough.

The defense lawyers also contested claims by the plaintiffs that Marcus, now a 9-year-old fourth-grader, will suffer life-long medical complications from the accident.

Johnson said the safety ring and instructions were difficult to find in the package and that the ring was not easy to attach to the stick. He said Marcus will develop internal problems at an early age that most people don’t get until they are older.

“He’s looking at that in his 20s rather than his 70s,” Johnson said.

Testimony continues today.

[Last modified October 11, 2006, 22:12:32]