(CN) - ThyssenKrupp Elevator may be liable for an escalator that trapped the leg of a 10-year-old Macy's shopper, causing her to lose several toes, a federal judge ruled.
Juan and Nora Valdez and their daughter and son, J.V. and B.V., sued Macy's Inc. and ThyssenKrupp Elevator America Inc. nearly a year ago exactly, over an injury that occurred at the Garden State Plaza in Paramus, N.J., on Aug. 16.
While Nora and her children were riding an escalator in Macy's, her 10-year-old daughter's right foot and leg got trapped, according to the complaint.
As J.V.'s mother tried in vain to help her child, a passerby hit the emergency stop switch so that the girl could be extricated from the escalator's metal plates, the family claims.
Paramedics then rushed J.V. to the hospital, and she has since allegedly had 13 surgeries, including a skin graft and the insertion of an "external fixation device."
The child's pinky and second toes had to be amputated, her family says.
Their seven-count federal complaint alleges negligent maintenance and repair of the escalator; negligence in Macy's supervision of inspector ThyssenKrupp; emotional distress; breach of contract; loss of consortium and services; and punitive damages.
The Valdezes say they were third-party beneficiaries of the defendants' written contract for ThyssenKrupp "to provide inspection, maintenance and repair services for the escalators." That deal was allegedly breached by the careless failure to properly maintain the escalator.
ThyssenKrupp, which also faces a cross-claim from Macy's, moved to dismiss the breach of contract and loss of consortium claims. Relying on a three-page excerpt from its deal with Macy's, the company said the Valdezes were not intended beneficiaries.
Though Macy's opposed dismissal of the contract claim, uncertain whether plaintiffs were beneficiaries, the store supported dismissal of the loss-of-consortium claim.
U.S. District Judge Katharine Hayden on Tuesday found it premature to look to the excerpt.
"It is not rocket science to figure out why ThyssenKrupp proffers the excerpt," the unpublished ruling states. "It reads in part, '[t]he only third-party beneficiaries to this agreement are the affiliates of owner.' Arguably, were this portion of the contract competent as a submission, ThyssenKrupp would go far in persuading the court that the plaintiffs were in no wise third-party beneficiaries of the [Macy's Vertical Transportation Agreement] MTVA and their breach of contract claim would fail."
Since J.V. has adequately pleaded a breach of contract theory, however, "a debate about, let alone a determination of intent is impossible at this point, and certainly not on the basis of an excerpt from the contract at issue," according to the ruling.
The court did dismiss the parents' per quod loss of consortium claim, finding it distinct from their loss of service claim.
"This distinction between loss of service and loss of consortium has its roots in the common law developed when children 'began working on the family farm or appeared at the minehead or factory gate as early as age 10,'" Hayden wrote. "While many states have moved beyond the pecuniary calculation of a parent's loss, New Jersey remains off-trend in prohibiting loss of consortium claims. The court will follow New Jersey's rulings and accordingly, ThyssenKrupp's motion to dismiss is granted in part and denied in part."
With around 160,000 employees in nearly 80 countries, Germany-based ThyssenKrupp Group reportedly reaped more than $5.63 billion in sales from October 2013 to June 2014.
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