Brown Complaint

FILED: SUFFOLK COUNTY CLERK 12/18/2017 12:33 PM INDEX NO.
614203/2017
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/18/2017
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK Index No.: 614203-2017
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JB, an infant under the age of fourteen (14) years by her FIRST
father and natural guardian, JASON BROWN; SB, an infant AMENDED
under the age of fourteen (14) by her father and natural VERIFIED
guardian, JASON BROWN, and JASON BROWN, COMPLAINT
Individually,
Plaintiffs,
-against-
MARK A. HELUPKA, LINDSEY M. BROWN, TOWN

OF BROOKHAVEN and EVENFLO COMPANY, INC.,
Defendants.
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Plaintiffs, by their attorneys KAITERIS 4 KAVANAGH, PLLC, as and for a First
Amended Complaint, allege, upon information and belief, as follows:
1. At all times hereinatter mentioned, plaintiff, JASON BROWN, was and still is
an adult resident of the County of Suffolk, State ofNew York.
2. At all times hereinatter mentioned, plaintiff, JB, was an infant under the age of
fourteen (14) years residing with her father and natural guardian, JASON BROWN, in the
County of Suffolk, State ofNew York.
3. At all times hereinatter mentioned, plaintiff, SB, was an infant under the age of
fourteen (14) years residing with her father and natural guardian, JASON BROWN, in the
County of Suffolk, State ofNew York.
4. Upon information and belief, and at all times hereinatter mentioned, defendant,
MARK A. HELUPKA, was and still is an adult resident of the County of Suffolk, State ofNew
York.
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FILED: SUFFOLK COUNTY CLERK 12/18/2017 12:33 PM INDEX NO. 614203/2017
LINDSEY M. BROWN, was and still is an adult resident of the County of Suffolk, State of
New York.
TOWN OF BROOKHAVEN, was and still is a corporate governmental agency constituting a
body corporate and politic.
7. That prior to the commencement of this action and within ninety (90) days after
the happening of the occurrence herein, plaintiff served a written Notice of Claim upon
defendant, TOWN OF BROOKHAVEN.
8. That at least thirty (30) days have elapsed since the claim upon which this action
is predicated against the defendant was presented for adjustment and/or payment thereof and
said defendants have neglected and/or refused to make such payment and/or adjustment.
9. That this action is commenced within one year and ninety days of the
occurrence herein described.
10. That a 50-h hearing was not demanded by defendant, TOWN OF
BROOKHAVEN.
EVENFLO COMPANY, INC., was and still is a domestic corporation duly organized and
existing under and by virtue of the laws of the State of New York.
EVENFLO COMPANY, INC., was and still is a foreign corporation duly organized and
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13. Upon information and belief, and at all times hereinatter mentioned defendant,
EVENFLO COMPANY, INC., was and still is an unincorporated entity duly organized and
EVENFLO COMPANY, INC., was and still is certified and/or registered to do business in the
State of New York.
EVENFLO COMPANY, INC., is a foreign corporation that regularly does or solicits business
from the State of New York.
EVENFLO COMPANY, INC., is a foreign corporation that derives revenue from goods used
or consumed in the State of New York.
EVENFLO COMPANY, INC., is a foreign corporation that engages in interstate commerce.
EVENFLO COMPANY, INC., was and still is engaged in the business of designing, among
other juvenile products, car seats for consumer use.
EVENFLO COMPANY, INC., was and still is engaged in the business of research and
development for, among other juvenile products, car seats for consumer use.
EVENFLO COMPANY, INC., was and still is engaged in the business of manufacturing,
among other juvenile products, car seats for consumer use.
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21. Upon information and belief, and at all times hereina1ter mentioned, defendant,
EVENFLO COMPANY, INC., was and still is engaged in the business of marketing, among
other juvenile products, car seats for consumer use.
22. Upon information and belief, and at all times hereina1ter mentioned, defendant,
EVENFLO COMPANY, INC., was and still is engaged in the business of selling, among other
juvenile products, car seats for consumer use.
AS AND FOR A FIRST CAUSE OF ACTION

ON BEHALF OF INFANT PLAINTIFF JB
AS AGAINST DEFENDANTS MARK HELUPKA AND LINDSEY M. BROWN
23. That plaintiff repeats, reiterates, restates and realleges each and every allegation
set forth above with the same force and effect as if the same were more fully set forth at length
herein.
24. Upon information and belief, and at all times hereinaiter mentioned, defendant,
MARK A. HELUPKA, was the owner of a 2000 BMW motor vehicle bearing New York State
registration number HDL7285.
MARK A. HELUPKA, was the operator of the aforesaid motor vehicle.
MARK A. HELUPKA, operated the aforesaid motor vehicle with the permission, express or
implied of the owner.
MARK A. HELUPKA, operated the aforesaid motor vehicle with the consent of the owner.
MARK A. HELUPKA, operated the aforesaid motor vehicle with the knowledge of the owner.
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MARK A. HELUPKA, managed the aforesaid motor vehicle.
MARK A. HELUPKA, controlled the aforesaid motor vehicle.
MARK A. HELUPKA, maintained the aforesaid motor vehicle.
MARK A. HELUPKA, was the lessee of the aforesaid motor vehicle.
MARK A. HELUPKA, was the lessor of the aforesaid motor vehicle.
LINDSEY M. BROWN, was the owner of a 2005 Suzuki motor vehicle bearing New York State
registration number BRU6910.
LINDSEY M. BROWN, was the operator of the aforesaid motor vehicle.
LINDSEY M. BROWN, operated the aforesaid motor vehicle with the permission, express or
implied of the owner.
LINDSEY M. BROWN, operated the aforesaid motor vehicle with the consent of the owner.
LINDSEY M. BROWN, operated the aforesaid motor vehicle with the knowledge of the owner.
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LINDSEY M. BROWN, managed the aforesaid motor vehicle.
LINDSEY M. BROWN, controlled the aforesaid motor vehicle.
LINDSEY M. BROWN, maintained the aforesaid motor vehicle.
LINDSEY M. BROWN, was the lessee of the aforesaid motor vehicle.
LINDSEY M. BROWN, was the lessor ofthe aforesaid motor vehicle.
44. At all times hereinatter mentioned, infant plaintiff, JB, was a lawful passenger of
a 2005 Suzuki motor vehicle bearing New York State registration number BRU6910 operated by
defendant, LINDSEY M. BROWN.
45. Upon information and belief, and at all times hereinatter mentioned, Middle
Country Road at or near its intersection with Randall Road, Town of Brookhaven, County of
Suffolk, State ofNew York, were public roadways, streets and/or thoroughfares.
46. That on or about July 5, 2016, at approximately 6:30 a.m., defendant, MARK A.
HELUPKA, operated his vehicle on Middle Country Road at or near its intersection with Randall
Road, County of Suffolk, State ofNew York.
47. That on or about July 5, 2016, at approximately 6:30 a.m., defendant, LINDSEY
M. BROWN, operated her vehicle on Middle Country Road at or near its intersection with
Randall Road, County of Suffolk, State ofNew York.
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48. That on or about July 5, 2016, at approximately 6:30 a.m., at or near on Middle
Country Road at or near its intersection with Randall Road, County of Suffolk, State of New
York, the aforesaid motor vehicles collided.
49. That as a result of the foregoing, plaintiff, JB, was injured.
50. That the aforesaid collision was caused wholly and solely by reason of the
negligence of the defendants, without any fault or negligence on the part of the plaintiffs
contributing thereto.
51. The defendants were negligent and careless, in the ownership, operation,
management, control, supervision, maintenance and use of the aforesaid motor vehicles; in that
they failed to maintain, supervise, manage and control their vehicles as reasonable and prudent
persons under the circumstances prevailing, in direct violation and contravention of the rules of
the road, the police rules and regulations governing vehicular traffic on the aforesaid public
highway; the Vehicle and Traffic Laws of the State of New York and other pertinent laws of the
State of New York.
52. That the negligence of the defendants, consisted in failing to have and keep the
aforesaid motor vehicles under proper or as reasonable control or under such control that the
defendants, could stop the aforesaid motor vehicles in time to avoid the accident herein alleged
so as not to endanger the life, limb, property or safety of persons lawfully on the said highway; in
colliding with the vehicle in which infant plaintiffs were passengers; in failing to slow down or
stop the aforesaid motor vehicle with reasonable care and diligence on approaching the place
where the accident occurred as herein alleged so as to avoid the collision herein described; in
then and there driving and operating the aforesaid motor vehicle without keeping a look out
ahead, behind and to the side and without observing and heeding the road and traffic conditions
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then and there existing; in then and there failing to observe the rules of the road in such cases
made and provided governing the movements of vehicles on the highway; in then and there
failing to provide and equip the aforesaid motor vehicle with adequate, proper and sufficient
brakes to control the aforesaid motor vehicle as required by law and in failing to inspect and
repair same reasonably and properly and keep them in fit and proper working order and
condition and in failing to use and apply the same reasonably, properly and carefully as required
by law in such cases made and provided; and in being otherwise negligent in the premises.
53. That by reason of the foregoing, plaintiff, JB, sustained severe and permanent
personal injuries, became sick, sore, lame and disabled; sustained an aggravation or activation to
a prior-existing condition which was either known or unknown, latent or patent; suffered injuries
to her nervous system; suffered mental anguish, was confined to hospital, bed and home and will,
in the future, be so confined; was incapacitated from attending to her usual duties and will, in the
future, be so incapacitated; will suffer a loss and/or limitation of quality and enjoyment of life;
will and has suffered conscious pain and plaintiff, JB, was otherwise damaged to her person and
also to her property.
54. That plaintiff, JB, sustained serious and permanent injuries as defined by
§5102(d) of the Insurance Law of the State of New York.
55. That plaintiff, JB, sustained serious injuries and economic loss greater than basic
economic loss as defined by §5104 of the Insurance Law of the State of New York.
56. That this action falls within one or more of the exceptions set forth in C.P.L.R.
§1602.
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57. That by reason of the foregoing plaintiff, JB, has been damaged in an amount to
be determined by the triers of law and fact in an amount in excess of the jurisdiction of the lower
courts.
AS AND FOR A SECOND CAUSE OF ACTION

ON BEHALF OF INFANT PLAINTIFF SB
AS AGAINST DEFENDANTS MARK HELUPKA AND LINDSEY M. BROWN
herein.
59. That on or about July 5, 2016, at approximately 6:30 a.m., at or near on Middle
Country Road at or near its intersection with Randall Road, County of Suffolk, State of New
York, the aforesaid motor vehicles collided.
60. At all times hereina1ter mentioned, infant plaintiff, SB, was a lawful passenger of
the 2005 Suzuki Motor vehicle bearing New York State registration number BRU6910 operated
by defendant, LINDSEY M. BROWN.
61. That as a result of the foregoing, plaintiff, SB, was injured.
62. That the aforesaid collision was caused wholly and solely by reason of the
negligence of the defendants, without any fault or negligence on the part of the plaintiffs
contributing thereto.
63. The defendants were negligent and careless in the ownership, operation,
management, control, supervision, maintenance and use of the aforesaid motor vehicles; in that
they failed to maintain, supervise, manage and control their vehicles as reasonable and prudent
persons under the circumstances prevailing, in direct violation and contravention of the rules of
the road, the police rules and regulations governing vehicular traffic on the aforesaid public
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highway; the Vehicle and Traffic Laws of the State of New York and other pertinent laws of the
State of New York.
64. That the negligence of the defendants, consisted in failing to have and keep the
aforesaid motor vehicles under proper or as reasonable control or under such control that the
defendants, could stop the aforesaid motor vehicles in time to avoid the accident herein alleged
so as not to endanger the life, limb, property or safety of persons lawfully on the said highway; in
colliding with the vehicle in which infant plaintiffs were passengers; in failing to slow down or
stop the aforesaid motor vehicle with reasonable care and diligence on approaching the place
where the accident occurred as herein alleged so as to avoid the collision herein described; in
then and there driving and operating the aforesaid motor vehicle without keeping a look out
ahead, behind and to the side and without observing and heeding the road and traffic conditions
then and there existing; in then and there failing to observe the rules of the road in such cases
made and provided governing the movements of vehicles on the highway; in then and there
failing to provide and equip the aforesaid motor vehicle with adequate, proper and sufficient
brakes to control the aforesaid motor vehicle as required by law and in failing to inspect and
repair same reasonably and properly and keep them in fit and proper working order and
condition and in failing to use and apply the same reasonably, properly and carefully as required
by law in such cases made and provided; and in being otherwise negligent in the premises.
65. That by reason of the foregoing, plaintiff, SB, sustained severe and permanent
personal injuries, became sick, sore, lame and disabled; sustained an aggravation or activation to
a prior-existing condition which was either known or unknown, latent or patent; suffered injuries
to her nervous system; suffered mental anguish, was confined to hospital, bed and home and will,
in the future, be so confined; was incapacitated from attending to her usual duties and will, in the
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future, be so incapacitated; will suffer a loss and/or limitation of quality and enjoyment of life;
will and has suffered conscious pain and plaintiff, SB, was otherwise damaged to her person and
also to her property.
66. That plaintiff, SB, sustained serious and permanent injuries as defined by
§5102(d) of the Insurance Law of the State of New York.
67. That plaintiff, SB, sustained serious injuries and economic loss greater than basic
economic loss as defined by §5104 of the Insurance Law of the State of New York.
§1602.
69. That by reason of the foregoing plaintiff, SB, has been damaged in an amount to
courts.
AS AND FOR A THIRD CAUSE OF ACTION

AS AGAINST DEFENDANT TOWN OF BROOKHAVEN
herein.
71. Upon information and belief, at all times hereina1ter mentioned, defendant,
TOWN OF BROOKHAVEN, owned the property, roadway(s), stop signs, stop lines, traffic
signs and signals located at Randall Road at or near its intersection with Middle Country Road,
in the Hamlet of Ridge, the Town of Brookhaven, County of Suffolk, State of New York.
TOWN OF BROOKHAVEN, operated the property, roadway(s), stop signs, stop lines, traffic
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73. Upon information and belief, at all times hereinatter mentioned, defendant,
TOWN OF BROOKHAVEN, controlled the property, roadway(s), stop signs, stop lines, traffic
TOWN OF BROOKHAVEN, managed the property, roadway(s), stop signs, stop lines, traffic
TOWN OF BROOKHAVEN, maintained the property, roadway(s), stop signs, stop lines, traffic
TOWN OF BROOKHAVEN, leased the property, roadway(s), stop signs, stop lines, traffic signs
and signals located at Randall Road at or near its intersection with Middle Country Road, in the
Hamlet of Ridge, the Town of Brookhaven, County of Suffolk, State of New York.
TOWN OF BROOKHAVEN, repaired the property, roadway(s), stop signs, stop lines, traffic
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TOWN OF BROOKHAVEN, planned and/or designed the property, roadway(s), stop signs, stop
lines, traffic signs and signals located at Randall Road at or near its intersection with Middle
Country Road, in the Hamlet of Ridge, the Town of Brookhaven, County of Suffolk, State of
New York.
79. That on July 5, 2016, at approximately 6:30 a.m., the infant plaintiff, JB, was
caused to suffer serious personal injuries due to the gross and wanton carelessness, recklessness,
and negligence of the defendant, TOWN OF BROOKHAVEN, through its agents, servants
and/or employees when the infant plaintiff was caused to be involved in a motor vehicle accident
that occurred on Randall Road at or near its intersection with Middle Country Road (Route 25) in
the Hamlet of Ridge, Town of Brookhaven, County of Suffolk, State of New York, as
hereinabove alleged.
80. That at all the times herein mentioned, it was the duty and obligation of the
defendant TOWN OF BROOKHAVEN, by and through their agents, servants and/or employees,
contractors and/or subcontractors to keep and maintain said premises in a reasonable state of
repair and good and safe condition, and not to suffer and permit said premises to become unsafe
and dangerous to motor vehicles operating thereat.
81. That on the date, time and place aforementioned, the defendant TOWN OF
BROOKHAVEN, by and through their agents, servants and/or employees, contractors and/or
subcontractors carelessly and negligently allowed the aforesaid roadway(s) to be, become and
remain in an otherwise dangerous, hazardous, and trap-like condition, so that it became
dangerous to persons lawfully on the aforesaid roadway(s), and defendant knew, or by the
exercise of due care, should have known of the dangerous condition and nuisance that existed
thereat.
82. As a result of the negligence of the defendant, TOWN OF BROOKHAVEN, the
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infant plaintiff, JB, was caused to be seriously injured in a motor vehicle accident at the above
location, thereby suffering the injuries and damages hereinatter alleged.
83. That the accident and injuries to infant plaintiff, JB, resulting therefrom were
caused solely by the gross and wanton carelessness and negligence of the TOWN OF
BROOKHAVEN, by and through their agents, servants, and/or employees, in their ownership,
operation, maintenance, control, planning, design, construction, management, placement and
repair of the aforesaid roadway, intersection, trafñc lights and trafñc plans, stop signs and/or
stop lines existing thereat; in failing to place proper traffic signals and/or other devices at the
aforesaid intersection to adequately control trafñc thereat; in failing to conduct adequate studies
for the design and placement of trafñc signals or other devices located thereat; in failing to
conduct adequate studies for the design of the roadways existing thereat; in failing to conform
with acceptable engineering practice at the time of the construction of the roadways and
thereafter, and/or the design, mode and placement of trafñc signals or other traffic control
devices; in failing to rebuild or redesign the aforesaid location in conformance with new
standards; in failing to take reasonable measures to remedy the unsafe and dangerous condition
while having actual and constructive notice of a dangerous condition existing thereat; in failing
to conduct proper site surveys; in failing to make proper and timely inspections; in failing to
install, erect and/or maintain proper signs, signals or other devices for sufficient control of trafñc
thereat and to warn motorists of the hazards then and there existing; in failing to construct and
maintain the aforesaid roadways and/or trafñc signals or other traffic control devices located
thereat in a reasonably safe condition; in failing to timely implement design plans; in failing to
correct a known hazardous condition; in proximately causing the accident; and in causing the
plaintiff to suffer serious personal injuries all due to the negligence of the defendant TOWN OF
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BROOKHAVEN.
84. That by reason of the foregoing, infant plaintiff, JB, was rendered sick, sore, lame
and disabled; was and will be incapacitated for a long time to come; has been informed and
verily believes that her injuries are permanent in nature; was unable and continues to be unable
to attend to her usual duties; required medical aid and attention, suffered grievous physical pain
and mental anguish and will continue to suffer pain for a considerable time to come.
85. That as a result of the foregoing, the infant plaintiff, JB, has been damaged in an
amount which exceeds the jurisdictional limits of the lower courts.
AS AND FOR A FOURTH CAUSE OF ACTION

ON BEHALF OF INFANT PLAINTIFF SB
AS AGAINST DEFENDANT TOWN OF BROOKHAVEN
herein.
TOWN OF BROOKHAVEN, owned the property, roadway(s), stop signs, stop lines, traffic
TOWN OF BROOKHAVEN, operated the property, roadway(s), stop signs, stop lines, traffic
89. Upon information and belief, at all times hereinatter mentioned, defendant,
TOWN OF BROOKHAVEN, controlled the property, roadway(s), stop signs, stop lines, traffic
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TOWN OF BROOKHAVEN, managed the property, roadway(s), stop signs, stop lines, traffic
TOWN OF BROOKHAVEN, maintained the property, roadway(s), stop signs, stop lines, traffic
92. Upon information and belief, at all times hereinafter mentioned, defendant,
TOWN OF BROOKHAVEN, leased the property, roadway(s), stop signs, stop lines, traffic signs
and signals located at Randall Road at or near its intersection with Middle Country Road, in the
Hamlet of Ridge, the Town of Brookhaven, County of Suffolk, State of New York.
TOWN OF BROOKHAVEN, repaired the property, roadway(s), stop signs, stop lines, traffic
TOWN OF BROOKHAVEN, planned and/or designed the property, roadway(s), stop signs, stop
lines, traffic signs and signals located at Randall Road at or near its intersection with Middle
Country Road, in the Hamlet of Ridge, the Town of Brookhaven, County of Suffolk, State of
New York.
95. That on July 5, 2016, at approximately 6:30 a.m., the infant plaintiff, SB, was
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and negligence of the defendant, TOWN OF BROOKHAVEN, through its agents, servants
96. That at all the times herein mentioned, it was the duty and obligation of the
defendant TOWN OF BROOKHAVEN, by and through their agents, servants and/or employees,
contractors and/or subcontractors to keep and maintain said premises in a reasonable state of
repair and good and safe condition, and not to suffer and permit said premises to become unsafe
and dangerous to motor vehicles operating thereat.
97. That on the date, time and place aforementioned, the defendant TOWN OF
BROOKHAVEN, by and through their agents, servants and/or employees, contractors and/or
subcontractors carelessly and negligently allowed the aforesaid roadway(s) to be, become and
remain in an otherwise dangerous, hazardous, and trap-like condition, so that it became
dangerous to persons lawfully on the aforesaid roadway(s), and defendant knew, or by the
exercise of due care, should have known of the dangerous condition and nuisance that existed
thereat.
98. As a result of the negligence of the defendant, TOWN OF BROOKHAVEN, the
infant plaintiff, SB, was caused to be seriously injured in a motor vehicle accident at the above
location, thereby suffering the injuries and damages hereinatter alleged.
99. That the accident and injuries to infant plaintiff, SB, resulting therefrom were
caused solely by the gross and wanton carelessness and negligence of the TOWN OF
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BROOKHAVEN, by and through their agents, servants, and/or employees, in their ownership,
operation, maintenance, control, planning, design, construction, management, placement and
repair of the aforesaid roadway, intersection, trafñc lights and trafñc plans, stop signs and/or
stop lines existing thereat; in failing to place proper traffic signals and/or other devices at the
aforesaid intersection to adequately control traffic thereat; in failing to conduct adequate studies
for the design and placement of trafñc signals or other devices located thereat; in failing to
conduct adequate studies for the design of the roadways existing thereat; in failing to conform
with acceptable engineering practice at the time of the construction of the roadways and
thereafter, and/or the design, mode and placement of trafñc signals or other traffic control
devices; in failing to rebuild or redesign the aforesaid location in conformance with new
standards; in failing to take reasonable measures to remedy the unsafe and dangerous condition
while having actual and constructive notice of a dangerous condition existing thereat; in failing
to conduct proper site surveys; in failing to make proper and timely inspections; in failing to
install, erect and/or maintain proper signs, signals or other devices for sufficient control of trafñc
thereat and to warn motorists of the hazards then and there existing; in failing to construct and
maintain the aforesaid roadways and/or trafñc signals or other traffic control devices located
thereat in a reasonably safe condition; in failing to timely implement design plans; in failing to
correct a known hazardous condition; in proximately causing the accident; and in causing the
plaintiff to suffer serious personal injuries all due to the negligence of the defendant TOWN OF
BROOKHAVEN.
100. That by reason of the foregoing, infant plaintiff, SB, was rendered sick, sore, lame
and disabled; was and will be incapacitated for a long time to come; has been informed and
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verily believes that her injuries are permanent in nature; was unable and continues to be unable
to attend to her usual duties; required medical aid and attention, suffered grievous physical pain
and mental anguish and will continue to suffer pain for a considerable time to come.
101. That as a result of the foregoing, the infant plaintiff, SB, has been damaged in an
amount which exceeds the jurisdictional limits of the lower courts.
AS AND FOR A FIFTH CAUSE OF ACTION

AS AGAINST DEFENDANT EVENFLO INC. - NEGLIGENCE
COMPANY,
herein.
103. That on or before July 5, 2016, a Big Kid Booster Car Seat Model No. 30911120
was manufactured by defendant, EVENFLO COMPANY, INC. and displayed for sale in retail
stores in the State of New York.
104. That on or before July 5, 2016, a Big Kid Booster Car Seat Model No. 30911120
manufactured, assembled, designed, tested, marketed, labeled, sold and/or distributed by
defendant, EVENFLO COMPANY, INC., was purchased for use by infant plaintiff, JB.
105. That on July 5, 2016, at approximately 6:30 a.m., the infant plaintiff, JB, was
and negligence of the defendant, EVENFLO COMPANY, INC., through its agents, servants
106. That the aforementioned injuries sustained therefrom were proximately caused
wholly and solely by reason of the negligence, carelessness and/or recklessness of defendant,
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EVENFLO COMPANY, INC., and its agents, servants and/or employees, and without any part of
the plaintiff contributing thereto.
107. That the negligence, carelessness, and recklessness of the defendant, EVENFLO
COMPANY, INC., consisted in negligently and carelessly designing, researching, developing,
manufacturing, labeling, testing, inspecting, maintaining, marketing, distributing and selling a Big
Kid Booster Car Seat Model No. 30911120; in negligently and carelessly failing to properly
inspect and test the car seat prior to its sale and distribution; in negligently and carelessly
assembling, packaging and/or labeling the product; in negligently packing and shipping the
product; in negligently and carelessly selling and distributing the product when it was defective,
unsafe, and unsound; in failing to warn plaintiff and others of the substantial risk of damage
created by its product; in failing to remove the product from the market or recall same; in
mislabeling the product; and in otherwise being careless, reckless and negligent.
108. That defendant, EVENFLO COMPANY, INC., failed to properly test, design,
research, develop, manufacture, market, package, and label its product and defendant, EVENFLO
COMPANY, INC., in the exercise of reasonable care, knew or should have known of the unsafe
and hazardous condition of its product.
109. That by reason of the foregoing, infant plaintiff, JB, sustained severe and
permanent personal injuries, became sick, sore, lame and disabled; sustained an activation,
exacerbation and/or an aggravation of a physical and or mental condition, which was either
known or unknown, latent or patent; suffered injuries to her nervous system; suffered mental
anguish, was confined to hospital, bed and home and will, in the future, be so confined; was
incapacitated from attending to her usual duties and vocation and will, in the future, be so
incapacitated; has and will suffer a loss and/or limitation of quality and enjoyment of life; has and
will suffer conscious pain; has and will incur medical expenses and infant plaintiff, JB, was
otherwise damaged to her person.
Section 1602.
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111. That by reason of the foregoing infant plaintiff, JB, has been damaged in the sum
to be determined by the triers of law and fact in an amount in excess of the jurisdiction of the
lower Courts.
AS AND FOR A SIXTH CAUSE OF ACTION

AS AGAINST EVENFLO INC. -
DEFENDANT, COMPANY,
BREACH OF EXPRESS WARRANTY
112. That at all times hereinafter mentioned, infant plaintiff, JB, repeats reiterates and
realleges each and every allegation contained herein above as though same more fully set forth
herein at length.
113. That in connection with the sale of the product, the defendant, EVENFLO
COMPANY, INC.., expressly warranted and represented that its product researched,
manufactured, designed, tested, labeled, developed, assembled, marketed, sold and delivered by it
was of merchantable quality and fit for the purposes intended.
114. That in fact the product was neither of merchantable quality nor was it fit for the
use or purpose intended, but rather was defective, unsafe, unsound, and dangerous for use.
115. As a direct and proximate result of the defendant's breach of warranty, plaintiff
was caused to sustain serious and permanent personal injuries.
116. That as a result of the foregoing, and the express breach of warranty on the part of
the defendant, EVENFLO COMPANY, INC., infant plaintiff, JB, sustained severe and permanent
personal injuries, became sick, sore, lame and disabled; sustained an activation, exacerbation
and/or an aggravation of a physical and or mental condition, which was either known or
unknown, latent or patent; suffered injuries to her nervous system; suffered mental anguish, was
confined to hospital, bed and home and will, in the future, be so confined; was incapacitated from
attending to her usual duties and vocation and will, in the future, be so incapacitated; has and will
suffer a loss and/or limitation of quality and enjoyment of life; has and will suffer conscious pain;
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has and will incur medical expenses related to this claim and infant plaintiff, JB, was otherwise
damaged to her person.
Section 1602.
118. That by reason of the foregoing infant plaintiff, JB, has been damaged in a sum to
Courts.
AS AND FOR A SEVENTH CAUSE OF ACTION

AS AGAINST EVENFLO INC. -
DEFENDANT, COMPANY,
BREACH OF IMPLIED WARRANTY
119. That at all times hereinafter mentioned, infant plaintiff, JB, repeats reiterates and
realleges each and every allegation contained herein above as though same more fully set forth
herein at length.
120. That in connection with the sale of the product, the defendant, EVENFLO
COMPANY, INC., as a matter of law, impliedly warranted that its product was merchantable in
that it was fit for the ordinary purpose for which such goods are to be used.
121. That the product was used for its intended use, as a child restraint device.
122. Defendant's product was not fit for its intended use and as such, defendant,
EVENFLO COMPANY, INC., breached its implied warranty.
123. As a direct and proximate result of the defendant's breach of warranty, plaintiff
was caused to sustain serious and permanent personal injuries.
124. That as a result of the foregoing, and the breach of implied warranty on the part of
the defendant, EVENFLO COMPANY, INC., infant plaintiff, JB, sustained severe and permanent
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Section 1602.
lower Courts.
AS AND FOR A EIGHTH CAUSE OF ACTION

AS AGAINST EVENFLO INC. - STRICT LIABILITY
DEFENDANT, COMPANY,
127. That at all times hereina1ter mentioned, infant plaintiff, JB, repeats reiterates and
realleges each and every allegation contained herein above as though same was more fully set
forth herein at length.
128. Defendant, EVENFLO COMPANY, INC., is engaged in the business of selling
children's booster car seats.
129. Upon information and belief, the product was expected to and did reach its buyer
without substantial change in the condition in which was sold by the defendant.
130. The product was in a defective condition which was dangerous to users and/or
consumers, and in particular to plaintiff, JB.
131. The product failed to perform in accordance with its intended purpose because of
its defective condition.
132. The product failed to perform in accordance with the expectations of plaintiff.
133. The defective condition caused injuries to plaintiff, JB.
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134. At the time of the occurrence herein, the product was being used for the purposes
and in the manner normally intended.
135. Plaintiff could not, by the exercise of reasonable care, have discovered the defects
and perceived their dangers.
136. Defendant, EVENFLO COMPANY, INC., sold the product in a defective
condition unreasonably dangerous to plaintiff.
137. The product was in a condition not reasonably contemplated by the ultimate
consumer and was unreasonably dangerous for its intended use.
138. The product was defective and its utility did not outweigh the danger inherent in
its introduction into the stream of commerce.
139. The Big Kid Booster Car Seat Model No. 30911120, as designed, posed a
substantial likelihood of harm, that it was feasible for defendant, EVENFLO COMPANY, INC. to
design the product in a safer manner, and the defective design was a substantial factor in causing
the infant plaintiff's injuries.
140. As a proximate result of the defendant's sale of the defective product, the plaintiff
sustained serious and permanent personal injuries.
141. By reason of the foregoing, defendant is strictly liable to the plaintiff.
142. That as a result of the foregoing, infant plaintiff, JB, sustained severe and
permanent personal injuries, became sick, sore, lame and disabled; sustained an activation,
exacerbation and/or an aggravation of a physical and or mental condition, which was either
known or unknown, latent or patent; suffered injuries to her nervous system; suffered mental
anguish, was confined to hospital, bed and home and will, in the future, be so confined; was
incapacitated from attending to her usual duties and vocation and will, in the future, be so
incapacitated; has and will suffer a loss and/or limitation of quality and enjoyment of life; has and
will suffer conscious pain; has and will incur medical expenses related to this claim and infant
plaintiff, JB, was otherwise damaged to her person.
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Section 1602.
lower Courts.
AS AND FOR A NINTH CAUSE OF ACTION

AS AGAINST EVENFLO INC. - FAILURE TO WARN
DEFENDANT, COMPANY,
145. That plaintiffs repeat, reiterate, restate and reallege each and every allegation set
forth above with the same force and effect as if the same were more fully set forth at length
herein.
146. That at all times relevant hereto, the defendant, EVENFLO COMPANY, INC.,
owed a continuous duty to the purchasers and users of the Big Kid Booster Car Seat Model No.
30911120, including the plaintiffs, to warn of dangers and hazards with the use of the car seat,
including but not limited to defects and/or unreasonably dangerous features of the car seat.
147. That at all times relevant hereto, the defendant, EVENFLO COMPANY, INC.,
failed to provide adequate warnings and failed to warn of the latent dangers resulting from the
foreseeable uses of its product which it knew or should have known.
148. As a proximate result of the defendant's failure to warn, the plaintiff JB sustained
serious and permanent personal injuries.
149. That as a result of the foregoing, and the failure to warn on the part of the
defendant, EVENFLO COMPANY, INC., infant plaintiff, JB, sustained severe and permanent
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150. By reason of the foregoing, defendant is strictly liable to the plaintiff.
Section 1602.
lower Courts.
AS AND FOR A TENTH CAUSE OF ACTION ON BEHALF

OF PLAINTIFFS JB AND JASON BROWN AS AGAINST DEFENDANT, EVENFLO
INC. -FRAUD - FRAUDULENT FRADULENT
COMPANY, INDUCEMENT,
MISPREPRESENTATION AND FRAUDLENT CONCEALMENT
153. That plaintiffs repeat, reiterate, restate and reallege each and every allegation set
herein.
154. Plaintiff JB was the right rear seat passenger in the Suzuki. Five years old and
weighing less than 40 pounds, JB was properly restrained in her high back EVENFLO Big Kid
LX Model 309 booster seat manufactured in September 2013. According to EVENFLO, JB was
the proper height and weight to rely on the Big Kid to provide her with restraint and protection in
this crash.
155. Despite being seated opposite the impact area and having a fully preserved and
undamaged occupant space within the Suzuki, JB received numerous, catastrophic spinal cord
decapitation."
injuries; which injuries are described in the records as an "internal As a result, JB,
a previously healthy and active 5-year old, was left a ventilator-dependent, spastic
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quadriplegic/tetraplegic.
156. As to head and upper torso containment, scientific literature and studies have
demonstrated for decades that side impact collisions are foreseeable and especially dangerous for
children. EVENFLO acknowledged this well-known fact in conspicuously promoting that its
Tested"
child restraints, including the Big Kid, were "Side Impact and stating that
component."
"approximately one out of four vehicle crashes have a side impact According to
the National Highway Traffic Safety Administration (NHTSA), impacts to the side of the vehicle
rank almost equal to frontal crashes as a source of fatalities and serious injuries to children ages
0 to 12. EVENFLO has long known that children using its seats would be involved in side
impact crashes. In fact, EVENFLO's director of child safety seat engineering, Randolph Kiser,
agreed in testimony given in 2011, that EVENFLO had to take all reasonable steps to protect
children that are using its seats from injury in a side impact collision.
157. For decades prior to the date of JB's crash, EVENFLO worked with an expert
named Dr. Richard Stalnaker. Dr. Stalnaker was a pioneer in child seat safety issues and
consulted with EVENFLO as a regular business matter and in litigation. In 1974, Dr. Stalnaker
published an important peer reviewed paper at SAE (Society of Automotive Engineers)
International, on child restraint design in which he stated that "the single most important measure
of the injury protection afforded by a restraint system, however, is the extent to which it limits
directions."
head excursion in all Numerous peer-reviewed scientific papers and studies
followed Dr. Stalnaker's SAE publication, all of which addressed the absolute necessity of
containing a child's head and upper torso within the restraint system in side impact collisions in
order to minimize head and neck injuries. The2013 Big Kid manual supplied with JB's seat
expressly states that contact with a vehicle's interior during a crash can result in "serious injury
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death."
or
158. EVENFLO knew that side impacts are foreseeable and that providing real side
impact protection to children requires - at the minimum - head containment. Eric

very Indeed,
Dahle, a senior safety engineer at EVENFLO, has admitted in sworn testimony that losing head
and upper torso containment increases the risk of severe injury or death to children in crashes.
Mr. Dahle stated that nothing is more important to preventing these injuries than keeping a
child's head contained. In fact, Dahle's testimony was that there is no circumstance, ever, where
he wants a child's head out of the seat. EVENFLO knew how to run side impact tests to look for
loss of head and upper torso containment.
159. At the time the Big Kid was originally designed, EVENFLO had access to various
"sled"
test facilities that utilized a test to validate the design of the seat, to evaluate its protective
capabilities (or lack thereof), and to ensure that the purpose of the seat as expressly stated by
EVENFLO - "to restrain your child in a vehicle, to prevent him/her from the interior
striking
collision" - would
surfaces of the car in the event of sudden braking or a be fulfilled.
160. Since the time the Big Kid was originally designed, EVENFLO has been capable
of test sleds - its own test sled - to analyze the dynamic crash performance of
using including
the booster seat at various crash angles, including angles typically associated with lateral crashes,
to assess head containment issues. Beginning in 2008, EVENFLO finally began running side
impact tests with the Big Kid. These tests clearly and obviously revealed, or certainly should
have revealed, to EVENFLO that the Big Kid was failing to provide any upper torso or head
restraint.
161. EVENFLO also knew precisely how to contain the head of a child in a child
restraint prior to JB's injuries. Countermeasures - alternative designs that work - include robust
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side structures on the sides of the child restraint, especially when coupled with actual restraint
systems like 5 point harnesses. EVENFLO had knowledge of how to contain the head and upper
torso of a child. In a 2005 peer reviewed article entitled The Effectiveness High Back Belt-
of
Positioning Boosters in Side Impacts, the authors stated as follows: (1) Results from this work
indicate that current booster seats offer poor torso containment and no head containment for
children within the recommended age range... Belt-positioning boosters must offer better
impact"
containment of the occupant during the which can be accomplished with "sufficiently
structures;"
well-defined side wing (2) The tests conducted illustrate that there are clear
deficiencies in the ability of the high back boosters tested here to provide adequate protection for
children in a side impact; (3) Booster seats on the market should be able to better contain the
surrogate child during an impact to prevent contact between the fragile body and the hard surface
of the car. This could be achieved by designing deeper and better oriented side wings with the
objective of maximizing the potential for retaining the occupant.
162. That same year, in another peer reviewed paper entitled Design and Sled Testing
of a High Back Booster Seat Prototype Offering Improved Side Impact Protection, the authors
stated that: "Current booster seats do not offer effective protection in side impact . . . This study
confirms that it is possible to offer significantly improved side impact protection in booster seats
system."
by using a rigid anchorage system, deep side wings, and a height adjustment
163. EVENFLO had actual knowledge of this. In in 2014 - two years before JB's
fact,
injuries - the JPMA (Juvenile Products Manufacturers wrote to the National

Association)
Highway Transportation Safety Administration ("NHTSA") on behalf of EVENFLO (and other
child restraint manufacturers) continuing to oppose and complain about the NHTSA's
unsuccessful 12 year effort to enact side impact regulations. The JPMA, however, did admit the
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"existing"
following, with respect to seats:
[S]ide impact protection in lines of high back belt
positioning booster seats include the use of deeper side

walls and side impact cushions, an adjustable head
restraint, and energy absorbing foam that lines the inside of

the head restraint or as side wings. These features are
designed to minimize the side to side head movement and
are intended to further contain the head within the confines
of the booster seat... Head containment has been the
critical focus of manufacturers in reducing injury during
collisions."
side impact
(Emphasis added).
focus"
Unfortunately for JB, this "critical was totally absent with respect to her EVENFLO
Big Kid.
164. The Big Kid entered the market in or about 2003. Early marketing documents for
"target"
the Big Kid reveal that EVENFLO's market was parents like JASON BROWN, who
safe"
trusted EVENFLO's brand; who "expect that booster seats are and who trust that their
seat." "safety"
child will be protected in the These documents also reveal that needed to be
"visible"
to parents on the store shelf. As EVENFLO also knew that providing side impact
steps"
protection was crucial and that it "must take all reasonable to provide that protection, the
Big Kid design team documented that an initial design consideration for the Big Kid was to
protection."
"investigate side impact Despite this, EVENFLO failed to do so. Remarkably, the
Big Kid was not subjected to a single side impact test prior to its launch, even though side impact
tests had been run on child seats since approximately 1970, over 30 years prior. Worse yet and
in a deliberate effort to cast the widest marketing net possible, EVENFLO labeled the Big Kid
for use by children as young as one year old (who should still be rear facing in an infant seat),
with no minimum height restriction and a minimum weight of 30 pounds - children who are far
too immature and small to ever use a booster seat. Over time, pressure from the NHTSA, grass
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roots safety advocates, and cases like this one, forced EVENFLO to abandon this nefarious
practice and slowly increase the size of children the Big Kid is marketed to. By late 2007,
"none"
EVENFLO increased the minimum height from to 38 inches and added a minimum age
"restraint"
of three years old before this so-called could be used.
165. These labeling changes restricted the universe of children who could use the Big
Kid and began to impact EVENFLO's market share. By early 2008, EVENFLO determined that
it was losing Big Kid sales to the Graco Turbo Booster, a competitive high back booster with
more robust side wings than the Big Kid. At or about this time, EVENFLO tested the Graco
TurboBooster in side impact tests and learned from internal focus groups that parents wanted
wings"
boosters that had "deeper side for side impact protection. Although it had tested the
competition, EVENFLO had still not run even one side impact test on the Big Kid.
Nevertheless, EVENFLO decided to go ahead and prominently advertise the Big Kid as having
been side impact tested - to make more money.

simply
166. In order to enhance its marketing claim to having side impact tested the Big Kid,
EVENFLO in early 2008, EVENFLO decided to change the booster seat backrest to increase
side support in the torso area. EVENFLO believed this change would not only allow it to claim
tested,"
that the Big Kid was "side impact but would also result in "increased perceived side
protection."
In other words, not real side impact protection, but perceived or illusory protection.
In keeping with its initial Big Kid design plan that stated that "safety . . . needs to be visible at
purchase,"
the time of EVENFLO decided that it would produce this visibility through
misinformation and sleight of hand. Before the meaningless 2008 design change to the Big Kid
was even made - and still before side impact tests had been run on the Kid - EVENFLO
any Big
TESTED"
made the decision to advertise the Big Kid as being "SIDE IMPACT and finalized
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"benefit"
labeling, point of sale, and other marketing materials emphasizing this purported safety
of the seat.
167. EVENFLO ran its first side impact tests of a Big Kid on March 20, 2008. The
dummies'
results, especially regarding head and torso containment, were disastrous. The child
heads and upper torsos were not contained in - the "side support in the torso
simply any way
area" "wings"
and the flimsy on the headrest did not even slow the child dummy's lateral
excursion and ejection out of the confines of the seat; let alone stop it. Dozens of identical tests
were run on the Big Kid thereafter. EVENFLO and its expert have previously conceded what is
clear to any lay person who sees these tests: the dummy's head and upper torso escape the seat's
protective cocoon in every single test run with child dummies ranging in size to simulate 3 year
olds to 10 year olds. There are no exceptions.
168. The purpose of performing the type of side impact testing that EVENFLO ran on
the Big Kid was to demonstrate "how well the attachment system keeps the child restraint from
restraint."
moving laterally and how well the dummy's head is contained within the
EVENFLO - despite the ease with which anyone can see the complete loss of head
Nevertheless,
and upper torso containment in its own - did not and does as part of its internal test
testing not,
dummies'
protocol, even try to quantify or otherwise measure the distances the various heads
travelled laterally during the test. Failing to measure lateral head excursion, however, hardly
hides the obvious failure of the Big Kid at issue.
169. Consistent with what EVENFLO has already admitted about the hazards
of loss of head and upper torso containment generally, its engineers must eventually
concede that what is seen in its side impact tests of the Big Kid is a serious and
significant hazard to a child using the seat. In reality, the test results merely confirmed
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what EVENFLO, through the JMPA, told the NHTSA many years prior to JB's accident:
"Booster seats are not themselves a restraint, and are not likely to be able to contribute to
side impact protection... [t]he child restrained in a belt-positioning booster will have the
benefit of the vehicle's side impact protection, but cannot expect to receive additional
seat."
protection from a booster
170. Several years prior to the date JB's Big Kid was manufactured,
EVENFLO corporate representative Randy Kiser had already testified in another Big Kid
impact."
side impact case that the seat "does not provide restraint in side Despite this
knowledge - confirmed the outcome of dozens of side impact tests

patently by disturbing
- EVENFLO decided not to make further design changes to the Kid back or side
any Big
"perception"
wings, apparently concluding that the to parents, including JASON
BROWN, that the Big Kid provided side impact protection and restraint was a good
enough substitute for actual side impact and restraint protection.
171. Though it has developed reasonable alternative restraint designs in several
of its other child seats, EVENFLO's excuse for not changing the Big Kid's design to
provide adequate side impact protection is that designing the admitted hazard out of the
"difficult."
Big Kid would be
172. At all relevant times herein, EVENFLO chose not to provide any warnings
or information to parents, including JASON BROWN, advising of the Big Kid's poor test
performance (particularly in side impacts).
173. At all relevant times herein, EVENFLO chose not to provide any warnings
or information to parents, including JASON BROWN, advising that the seat is likely to
cause and/or fail to prevent serious injury or death to children of JB's height and weight
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in a side impact.
174. At all relevant times herein, EVENFLO did not advise parents, including
JASON BROWN, that the Big Kid is not a child restraint device.
175. At all relevant times herein, EVENFLO did not advise parents, including
impact,"
JASON BROWN, that the Big Kid "does not provide restraint in side a fact
known to Evenflo for years prior to JB's crash.
176. Instead of advising parents, including JASON BROWN, of the inherent
danger involved and as above-described, EVENFLO continued and continues to promise,
affirm, and represent to parents and consumers, including JASON BROWN, that the Big
restraint;"
Kid is a "child that will provide protection in crashes of all configurations,
TESTED."
including side impacts and that it has been "SIDE IMPACT
177. Due to marketing/financial decisions, the Big Kid's design remains
unchanged and continues to result in a dangerous loss of head and upper torso
containment in side impact collisions, a hazard that EVENFLO admits can lead to severe
injury or death to a child.
178. EVENFLO's claim that a design change to the Big Kid would be
"difficult"
is false and untrue. EVENFLO has known for years how to solve the issue
that resulted in Jillian's injuries - it just chose not to implement so that it

devastating it,
can maintain market share and resulting profitability on the Big Kid, a seat EVENFLO
workhorse"
refers to as the "reliable in its EVENFLO stable.
179. EVENFLO has claimed that it follows the well-established "hierarchy of
safety"
in the design process. Per EVENFLO's sworn testimony in several cases
preceding JB's crash, "your priority should be to design it (a hazard) out and then if you
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out."
can't do that, warn it EVENFLO's anticipated expert in this case, its expert in all of
its cases, William Van Arsdell, testifying on EVENFLO's behalf at a trial, agreed that the
hierarchy requires that the following steps be taken:
"You should identify hazards associated with a product and

you should do everything you can to design those hazards
out of the product . . . if there's a hazard, design it out. If
for some reason you cannot design out the hazard, then you
can move on to other steps, which are to guard against the
hazard."
hazard and possibly warn against the
hierarchy"
A hazard more suited to application of the "safety than that presented by
the Big Kid is difficult to envision, yet EVENFLO remarkably did nothing to design or
warn out a flaw in the Big Kid that it knows results in devastating injuries to kids.
180. Initially, designing out the flaw that caused JB's devastating injuries could
have been easily accomplished by using a five point harness and increasing the protection
"wings."
of the Big Kid's side These measures would have eliminated the hazards
presented by loss of head and upper torso containment and would have prevented JB's
catastrophic injuries.
181. In fact, literature regarding child seat safety is replete with studies
documenting the correct way to protect children in booster seats like the Big Kid. For
example, in 2009, Suzanne Tylko, a world renowned child seat researcher from Canada,
ran dozens of tightly controlled tests comparing boosters like the Big Kid to five point
harnessed seats in side impact tests. Ms. Tylko determined that "only the forward facing
child seat with a five point harness was able to keep the child dummy within the
seat."
protective cocoon of the A detailed statistical study in 2010 found that booster
seats like the Big Kid had a far higher rate of fatal and disabling injuries to children than
five point harnessed seats.
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182. In March 2011, the American Academy of Pediatrics ("AAP") released a
Recommendations"
Policy Statement with its updated "Best-Practice concerning child
passenger safety. With respect to children of JB's age and size, the AAP continued to
recommend use of "a forward-facing [child safety seat] with a harness for as long as
possible." information"
Additionally, the AAP provided the following "complementary
practice"
in support of this "best recommendation: (1) "Several models of convertible
and combination CSSs [child safety seats] can accommodate children up to 65 or 80 lb.
when used forward-facing. The lowest maximum weight limit for currently available
lbs.;"
forward-facing CSSs is 40 and (2) "There is a safety advantage for young children
to remain in CSSs with a harness for as long as possible before transitioning to booster
seats."
183. In 2012, four years before JB's devastating injuries, the University of
Michigan Transportation Institute (UMTRI) found that moving a child from a harnessed
seat to a booster "actually decreases the level of occupant protection offered and should
possible."
be delayed as long as In 2013, authors at Neuroscience Research Australia
'recommended'
stated that parents should "Exhaust all options for restraints in the child's
category before transitioning them to the next category of restraint. When a child
exceeds the size limits of one particular model of restraint, there may be other restraints
available in that category that accommodate that child's size, which would provide better
restraint."
protection than progressing to the next category of
184. EVENFLO has admitted that the only time a child is better off in a booster
child restraint than a harnessed five point seat is when the car does not have a tether
anchor - and even that is limited to frontal crashes.
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185. EVENFLO engineer Josh Donay admitted in sworn testimony that a five
point harnessed seat is safer overall than a booster. Mr. Donay further admitted that a
safety"
five point harness provides an "inherently higher level of than a booster.
186. EVENFLO expert Van Arsdell admits a five point harness is better than a
booster if a child is immature, too small, out of position, cannot constantly be monitored
by the parents, or falls asleep.
advocate"
187. EVENFLO "safety Sarah Haverstick agrees that the Child
Passenger Safety Technician ("CPST") curriculum states that five point harnessed seats
provide more protection than boosters.
188. EVENFLO's internal testing of its own five point harnessed seats, such as
the SecureKid, among others, easily and visually prove the fact that five point harnessed
seats provide more protection than boosters.
189. EVENFLO's litigation testing of the Big Kid in other lawsuits involving
the Big Kid and similar boosters further visually proves that five point harnessed seats
provide more protection than boosters..
190. The safety hierarchy requires warnings of the hazards if EVENFLO
chooses not to design them out. As stated above, EVENFLO has claimed in the past that
"difficult."
designing the known hazards out of the Big Kid would be This is clearly
untrue, however, and for the sake of argument, taking it at face value and using
EVENFLO's own safety hierarchy, EVENFLO understood at all times prior to JB's
out."
injuries and at all times thereafter, that such a hazard must be "warned Despite this
protocol, EVENFLO did nothing to warn these hazards out. Making matters worse,
EVENFLO and - for purposes - did just the

affirmatively aggressively marketing
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opposite. EVENFLO deliberately concealed the hazard by misrepresenting to parents
restraint,"
like JB's, that the Big Kid is a "child something it clearly and admittedly is
not. EVENFLO further deliberately misrepresented to parents like JB's, that the Big Kid
tested" crashes"
had been "side impact and will provide protection in "most if used
properly; when EVENFLO knew and had unequivocally admitted that the Big Kid "does
impacts."
not provide restraint in side
191. EVENFLO chose not to design out the Big Kid's hazards and further
chose to misrepresent the Big Kid as a side impact tested child restraint system to JB's
parents, instead of stating the truth about the Big Kid's inadequacy in side impacts for
children of JB's size. In choosing to hide what it knew about the Big Kid's terrible
performance in side impact testing; by prominently displaying a "SIDE IMPACT
TESTED"
logo on its product and by labeling and warranting that the Big Kid would
"SAFETY"
provide in side impacts for children weighing as little as 30 pounds,
EVENFLO defrauded the Brown family and betrayed the trust two young parents put in a
company with a well-established brand name.
"restraint"
192. Boosters do not reliably provide for children under 40 pounds.
Kid" seat" system."

EVENFLO calls the "Big a "booster and a "child restraint In the Big
Kid manual, EVENFLO represented to Plaintiffs that the Big Kid was "the best way to
child," difference,"
minimize injuries to your that using the seat would "make a big and
child"
that it would "greatly reduce the risk of serious injury to your in a crash.
EVENFLO promised consumers like JASON BROWN - through statements on JB's Big
- Kid" "restraint,"
Kid and in its marketing materials that the "Big was a that it was "Side
Tested," SIMPLE!"
Impact and that it made "SAFETY. SO EVENFLO also promised
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consumers like JASON BROWN that the Big Kid would safely restrain children who
weighed as little as 30 pounds in crashes. These promises, assurances and warranties
were knowingly false, misleading, and fraudulently made by EVENFLO to induce
consumers like JASON BROWN to purchase the Big Kid for his under 40 pound
daughter, JB.
193. For decades prior to July 5, 2016, EVENFLO actually knew that lateral
accidents are very dangerous to children and that limiting head excursion in all directions
was the most important measure of injury protection provided by a child restraint.
EVENFLO further knew that various governmental and non-governmental organizations
in North America with significant expertise in child transportation safety, had
consistently recommended against using booster seats for children who weighed less than
40 pounds and had identified the dangers and risks of using these products with such
children.
194. Upon information and belief, some of the information and
recommendations that were available and actually known to EVENFLO include, but are
not limited to, recommendations of the following: guidelines, newsletters and policy
statements issued by the American Academy of Pediatrics; consumer information
published by the Department of Transportation; consumer information, brochures,
manuals and tip sheets published by the NHTSA; the National Transportation Safety
Board; papers of SafetyBeltSafe; Safe Ride News; the American College of Emergency
Physicians; the Automotive Safety For Children Program at Riley Hospital Indiana
University School of Medicine; the National Safety Belt Coalition; the International
Center for Injury Prevention; General Motors; SafeKids; Children's Hospital of
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Philadelphia-Partners for Child Passenger Safety; Pediatrics journal; recommendations of
Highway Safety Research Center at University of North Carolina; Injury Prevention; the
Association for the Advancement of Automotive Medicine; the National Child Passenger
Safety Board; Pediatric Emergency Care; publications of the University of Wisconsin;
publications of the Society of Automotive Engineers; articles of Traffic Injury Protection;
"
publications/manuals of the National Child Passenger Safety Board; and the In-Vehicle
Protocol."
Crash Testing for the Development of a Child Side Impact Test
195. By no later than April 1, 1989, booster seats that EVENFLO sold in
Canada contained labeling and instructions that provided warnings such as this: "This
booster cushion is designed for use ONLY by children who weigh between 40 and 100
pounds"
and that the failure to follow this warning "can result in your child striking the
vehicle's interior during a sudden stop or crash, potentially resulting in serious injury or
death."
196. On July 17, 1989, EVENFLO engineer Richard Glover sent a memo to
"recommendation"
EVENFLO employee Roger Harris referencing a by EVENFLO's
Director of Product Development (Jerry Koziatek) that "we go to a recommendation of
seats.'"
'no less than 40 pounds for booster
197. On June 24, 1991, following the recommendations of its safety seat
engineer, Jerry Koziatek, EVENFLO prepared an engineering change request that
modified the minimum weight on all of its booster seats from 30 to 40 pounds.
According to documents and testimony, this request was changed to an engineering
change notice on August 21, 1991, was signed by EVENFLO management, and
implemented without any warning, notice, publication or recall to consumers. Only when
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consumers who thereafter contacted EVENFLO regarding accidents in which their under
40 pound children were using booster seats, would EVENFLO advise the consumer to
use convertible seats with harnesses until the children reached 40 pounds.
sheets"
198. In November of 1992, NHTSA circulated a "tip flyer to various
members of the child safety seat industry for comment, including EVENFLO. The
flyer's tips, which included the following, were circulated to numerous EVENFLO
employees by its chief child safety seat engineer, Richard Glover, who stated that the tips
"commendable" "help" "consumer:"

were and would the (1) "Booster seats are for
children over about 40 pounds; (2) Keep your child in a safety seat with a harness for as
long as possible, up to about 40 pounds and four years; and (3) a toddler over one year of
age, weight 20 to 40 pounds, is not big enough for a booster seat in the car. He needs the
extra protection for his upper body and head that a harness with hip and shoulder straps
give."
can
199. On February 24, 1993, Richard Glover advised numerous EVENFLO
exposure."
managers of steps he and others had taken to "reduce product liability One
such step was that "we have increased the weight limit minimum of booster seats forcing
belts."
more children to remain in toddler seats which contain shoulder
"Sidekick"
200. In 1994, EVENFLO introduced the booster seat in the United
States. Used without the shield, it instructed that the minimum safe weight for the seat
was 50 pounds. EVENFLO warned that use of the Sidekick without a shield for children
weighing less than 50 pounds "can result in your child striking the vehicle's interior
crash" result."
during a sudden stop or and that "serious injury or death can
201. In 1997, EVENFLO was still selling the Sidekick in the United States; by
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now, it had dropped the minimum weight without the shield to 40 pounds and warned
death."
that use with children below that weight could result in "serious injury or It also
Seat"
introduced a new seat for the U.S. market in 1997, the EVENFLO "Booster (later
called the "RightFit") which also instructed that the minimum safe weight for a child
using the seat was 40 pounds. The RightFit instructions specifically warned that using
the booster with children who weighed less than 40 pounds "can result in your child
crash"
striking the vehicle's interior during a sudden stop or and that "serious injury or
result."
death can
202. In September, 1999, EVENFLO was sued in a case involving a
"SightSeer"
booster seat entitled Steele v. Evenflo. The claims in the Steele case were
centered on booster seat use by children who weighed less than 40 pounds and how such
use could result in spinal cord injuries; injuries that could be avoided in a seat with
integrated harnesses.
Passage"
203. In February of 2001, EVENFLO issued its "Safe brochure in
which it expressly admitted that "Booster Child Restraints are specifically designed for
restraints"
children who have outgrown their convertible child and further stated that it
first"
had made it its business to "put child safety and that "substantial funds are also
allocated to consumer education on the importance and proper use of child car restraints.
Evenflo."
So, when you want peace of mind, turn to the leaders. Turn to
204. On September 10, 2001, the National Child Passenger Safety Board, with
the approval of NHTSA, publicly recommended that children should stay in a full harness
seat until 40 pounds is reached. EVENFLO representatives not only knew about this
recommendation, they expressly approved it as Randy Kiser was on the Board at the time
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and part of the process.
205. On August 27, 2002, Randy Kiser, EVENFLO's Director of child safety
seat engineering, made a number of admissions at the Steele v. Evenflo trial in the
capacity as EVENFLO's corporate representative: (a) Randy Kiser admitted that
"Information regarding the appropriate safe weight limit for the use of a child safety seat
information"
is important and "safety seat manufacturers have a responsibility to convey
to people who purchase its seats the proper maximum and minimum weight limits for the
seat;"
safe use of the (b) Randy Kiser admitted that "Irrespective of what the minimum
213,"
limit is under (Federal Motor Vehicle Safety Standards) the "safety seat
manufacturer, who has more knowledge about his seat than anyone else, has an
seat;"
obligation to convey information about what the safe weight range is for use of the
(c) Randy Kiser admitted that "if a manufacturer knows of a safety hazard, a potentially
serious crippling safety hazard with its product that it can't engineer out by changing the
design," hazard;"
then "it has an obligation to warn consumers about that (d) Randy Kiser
admitted that "in July of 1989, EVENFLO's former director of product development,
Jerome Koziatek, advised to raise the minimum weight limit on all of its booster seats
pounds;"
from 30 to 40 and (e) Randy Kiser admitted that EVENFLO knew that its
expert, Richard Stalnaker, says that "for children under 40 pounds, a five-point harness is
seat."
the best
206. On August 27, 2002, EVENFLO's then retired Director of Technical
Services (Jerry Koziatek) testified under oath that "the literature has shown that the safest
system."
system is the so-called five point harness
207. On August 28, 2002, during the Steele trial, EVENFLO's testifying expert
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witness, Dr. Richard Stalnaker, testified that "I definitely agree that a five-point harness
pounds."
is best for a child under 40 Dr. Stalnaker also agreed in his testimony that
"booster seats provide less protection than a full size child safety seat due to the lack of
body."
side wings and shoulder harnesses which protect the head and upper This
testimony was heard by EVENFLO corporate representative and chief child restraint
design engineer Randy Kiser, who was sitting in the courtroom. And numerous
EVENFLO employees, including its General Counsel, would later read it when the trial
transcript was completed.
208. On August 30, 2002, the jury in the Steele v. Evenflo case rendered a
verdict finding the EVENFLO booster seat defective because it recommended booster
use for children under 40 pounds. The verdict was later affirmed on appeal and the
judgment was paid by EVENFLO.
209. In February of 2006, EVENFLO recalled Big Kid belt-positioning
boosters sold in Canada because they were incorrectly labeled for children weighing less
than 40 pounds, which is prohibited in Canada. EVENFLO stated in the recall that two
lots of Big Kid Boosters that were imported into Canada were incorrectly produced with
marketing material intended solely for use in the United States. EVENFLO promised to
take action by sending letters to consumers who have registered their booster to inform
them of the safety risks associated with the premature use of boosters and to reinforce the
minimum weight use limit of 40 pounds in Canada. EVENFLO expressly stated "Should
an underweight child be placed in the booster cushion and the vehicle is involved in a
ejection."
collision...the child could be seriously injured due to ejection or partial
210. In November of 2007, EVENFLO expert William Van Arsdell testified
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that he kept his own daughter in a fully harnessed seat until she weighed 41 pounds.
211. In November of 2009, the Robinson v. Evenflo case was filed in North
Carolina. The Robinsons alleged that their son suffered severe brain damage when his
Big Kid failed to restrain him in a side impact crash because of its defective labeling and
design.
212. On April 27, 2010, the Romph v. Evenflo case was filed in Missouri. The
Romph family alleged that their daughter was rendered a ventilator-dependent
quadriplegic when her Evenflo booster seat failed to provide protection to her in a side-
impact collision.
213. In April 2012, and again in September 2012, EVENFLO revised its Big
Kid owner's manual. However, and despite everything it knew about the issues
discussed herein, EVENFLO decided not to change the minimum weight of 30 pounds to
40 pounds. Not only did EVENFLO leave the Big Kid's minimum weight at 30 pounds,
it stated - in direct opposition to decades of scientific papers

studies, recommendations,
and international guidelines - that "even children who have not outgrown their toddler
properly."
seat can benefit from the use of a booster seat, if it is used This
misrepresentation, coupled with the 30 pound minimum weight, was specifically intended
by EVENFLO as a marketing ploy. EVENFLO was encouraging parents to move their
children out of five point harness seats into the Big Kid booster when they were too small
for it. In the process, EVENFLO was generating enormous sales revenues and profits that
would not have otherwise been earned had it been truthful with consumers and
specifically, parents like JASON BROWN.
214. On April 26, 2013, a little girl, RA, was seated in a high back Big Kid
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virtually identical in structural design to the Big Kid that would be manufactured a few
"restraint."
months later and end up as JB's RA, who EVENFLO conceded was properly
was in the left rear seat of a vehicle that was struck on the passenger side - her
restrained,
grandmother, in the right front seat, was injured but fully recovered. RA's mother, the
driver, was uninjured. RA, like JB, was essentially ejected from her Big Kid and struck
her head on the intruding far side door panel. She, like JB, was rendered a ventilator
dependent quadriplegic because of the Big Kid's failure to restrain her.
215. EVENFLO was sued RA's on April 2015 - over a year

By family 2,
before JB's crash. EVENFLO's experts examined the subject vehicle and part of the Big
Kid in November, 2015 - 8 months before JB's crash. would later concede that RA
They
wings"
was using the seat correctly, that her head escaped the Big Kid's "side and that,
had RA been in a five point restraint, she would have been at lower risk of cervical
injury. Despite this knowledge, EVENFLO did nothing to recall the Big Kid or warn
parents already using the restraint with their children of the risks of losing head
containment in side impacts, especially for children weighing under 40 pounds.
216. In March, 2014, the National Highway Traffic Safety Administration
issued the next version of its Child Passenger Safety technician training manual. The
Guide, which was reviewed and approved by EVENFLO employee Sarah Haverstick,
repeated that, children in the age range of 4 - 7 years, "should be kept in a forward-facing
car seat with a harness until they reach the top weight or height limit allowed by the car
manufacturer."
seat The manual also stated that "a five point harness provides more
belt."
protection for a child than a booster seat with a lap and shoulder Finally, the
manual stated that "children should be moved to a belt-positioning booster seat only
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seat."
when they have outgrown the height and weight limit of their forward facing car
217. Given the specificity, consistency, and importance of the findings,
recommendations, warnings, and other information contained in the materials referenced
above, various members of the child safety seat industry

- including Graco,
Cosco/Dorel, Britax, Diono, and Jupiter Industries - all provided information to their
consumers warning about the premature graduation of children weighing less than 40
pounds from safety seats with integrated restraints into belt-positioning boosters. For
Seat"
example: Graco warned in its instructions for the "Car Seat/Booster in 2001 that
"if your child is between 30 and 40 lbs., he should continue to use the harness if his
shoulders are below the upper harness slots. We highly recommend the use of a built-in
child."
harness for as long as it is suitable and comfortable for your
218. Cosco/Dorel warned in its instructions for the Cosco High Back Booster in
2002 that the shoulder straps should not be removed from the seat for a child weighing
between 30 and 40 pounds, converting it into a belt-positioning booster, until "his
slots."
shoulders are above the upper set of harness
219. Britax warned, for its Roadster belt-positioning booster seat, that no child
should ever use the seat who weighed less than 40 pounds.
220. In 2009, Graco warned in the instructions for its Nautilus Child
Restraint/Booster Seat that "If child is between 30 and 65 lbs. (13.6kg and 29.5 kg) and
shoulders are below the upper harness slots, we highly recommend use of the built-in
kb))."
harness for as long as possible (up to 65 lbs. (29.5
221. In 2011, Diono provided the following warning in the instructions for its
Monterey booster seat: "IMPORTANT: Children who weigh 40 lbs. (18 kg) or less are
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best protected in a 5-point harness restraint. Diono recommends that children remain in a
allowed."
5-point harness restraint until reaching the maximum weight or height
222. Despite the fact that all of the information contained in the paragraphs
Kid"
above was actually known to EVENFLO well prior to the time that JB's "Big was
manufactured: EVENFLO chose not to offer any such warnings or recommendations
Kid;"
with the United States version of the "Big instead unimaginably broadening the
recommended weight range to a minimum of 30 pounds and putting children at risk, for
the sole purpose of trying to capture a larger share of the booster seat market.
223. EVENFLO knew, long before the subject Big Kid was designed,
manufactured, and sold, that parents see the purchase of car seats as overwhelming and
complicated.
manufactured, and sold, that parents who purchase child safety seats did little on-line
research prior to selecting a child seat, did little or no planning before buying a child seat
and have little real experience or knowledge about what child safety seat they should buy
prior to entering a retail store.
manufactured, and sold, that because all car seats are self-certified as meeting Federal
safety standards, most parents feel that all seats have relatively the same level of safety.
and that the environment where child seats are sold -

manufactured, sold, safety typically
box' -
'big retailers naturally forced a feature by feature comparison by parents and that
point of purchase information was of paramount importance and drove sales.
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manufactured, and sold, that weight requirements were one of the most important factors
parents consider when selecting a new child safety seat.
"convertible"
228. EVENFLO knew, by 2010, that the majority of and
"combination"
seats available in the marketplace accommodated children weighing up to
at least 50 pounds with an internal five point harness.
229. EVENFLO knew that, since the Big Kid was first introduced in 2003, not
"convertible" "combination"
one or child restraint was available in the marketplace that
contained a maximum weight limit less than 40 pounds.
230. On or about September 14, 1999, the Administrator of NHTSA, Ricardo
Martinez, M.D. sent a letter to EVENFLO which stated, among other things: As a key
protective device for our Nation's children, child restraints must be designed and
constructed with the highest levels of safety in mind. Dr. Martinez stated: Our review of
NHTSA's compliance test results during the past few years indicates that many restraints
have been engineered to barely comply with some of the most safety-critical
requirements of the standard, rather than being designed with larger compliance margins.
231. Dr. Martinez further stated: With the safety of our Nation's children at
issue, mere compliance with the minimum requirements of the standard is not enough;
minimum standards should not be the most in safety design that manufacturers provide.
When products are engineered with narrow compliance margins, the level of safety risk
increases, even if the product is in technical compliance with the minimum standard.
232. Dr. Martinez further stated: I am urging each manufacturer of child
restraints to ensure that these restraints perform well beyond the minimum requirements
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of our standard. American families expect, and deserve, no less. It is up to the
manufacturers of these critically important safety devices to take on the responsibility of
maximizing child safety in all respects.
233. EVENFLO received and read the letter from Ricardo Martinez, M.D.
referred to in the preceding paragraphs. Despite the passage of more than 17 years
between the time EVENFLO received and read the letter from Ricardo Martinez, M.D.
referred to above (on or about September 14, 1999) and the collision involving JB,
EVENFLO did nothing to change the design or labeling of the Big Kid to ensure that
these restraints performed well beyond the minimum requirements of the standard, did
nothing to ensure that the seat had been designed, labeled, and constructed with the
highest levels of safety in mind or to maximize child safety in all respects, and did
nothing to pass on to consumers what it knew about the dangers of using a booster seat as
a restraint for a child weighing less than 40 pounds, especially in side impacts. In fact,
EVENFLO deliberately chose to do just the opposite when it lowered the allowable
weight range for boosters during that time, including the Big Kid, all so that it could
increase its market share and its profits. Because no child under 40 pounds can rely on
the Big Kid to provide restraint in a crash, especially a side impact crash, EVENFLO's
choice to market the seat to this segment of the population and to label it accordingly was
and is a violation of the standard.
234. In the fall of 2013, when EVENFLO manufactured the Big Kid that would
ultimately end up failing JB, it did not provide any of the information referenced above to
its retailers, to the public, or to the users and consumers of the Big Kid, including JASON
BROWN.
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235. EVENFLO failed to warn the public and the users and consumers of the
Big Kid, including JASON BROWN, about the inherent dangers in using the seat with
children under 40 pounds; its lack of stability; its lack of containment in side impacts; or
its complete lack of side impact protection. Instead, EVENFLO kept the minimum
weight at 30 pounds; used the 30 pound minimum in its point of sale purchasing
materials; and deliberately focused its marketing efforts at parents with children of that
weight, including JASON BROWN, knowing full well that the majority of purchasers:
(1) would trust EVENFLO and its claims and promises; and (2) would never find or seek
contrary recommendations in the literature described herein or on the internet.
236. EVENFLO provided information to Canadian citizens and advised
"ONLY"
Canadian consumers that the Big Kid had been specifically designed for use
with children weighing 40 pounds and above. At the same time, EVENFLO expressly
represented and warranted to U.S. consumers like JASON BROWN that the exact same
"ONLY"
seat had been designed for use with children weighing 30 pounds and above.
one of these statements can be true - the other is a blatant and

Only misrepresentation,
constitutes fraud under the laws of the State of New York.
237. EVENFLO, recklessly and with conscious indifference to the safety of
children, failed to provide any of the information above to Plaintiffs in a proper, timely,
or adequate way at any time prior to or after the purchase of and use of the Big Kid in
question and failed to warn or provide information to plaintiffs of the dangers inherent in
using the Big Kid with children under 40 pounds, particularly in side impact collisions.
Had any of this information been provided, the Big Kid in question would not have been
purchased and would never have been used with JB.
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238. Prior to July 5, 2016, EVENFLO sold the Big Kid in question to plaintiffs
who were induced to use it with JB because of numerous express and implied promises,
representations, assurances, and/or affirmations that were given to them, including those
set forth above and below.
children, made affirmative representations, promises, and warranties to plaintiffs that the
Kid" tested" "restraint"

"Big was "side impact and that it would provide in side impacts.
children, represented, promised and warranted to Plaintiffs that the essence of the Big
SIMPLE!"
Kid was "SAFETY. SO
241. In purchasing the subject Big Kid, Plaintiffs believed in and relied upon
EVENFLO being a trustworthy company with expertise in the design, labeling, and use
of child safety seats; that they could confide in and rely on this company when selecting
"restraint"
and using a for JB.
242. Plaintiffs believed EVENFLO's marketing promise that the Big Kid made
SIMPLE!"
"SAFETY. SO was truthful; and that if any information critical to the safe use
of the product were known to EVENFLO, it would be provided to them as consumers.
243. Plaintiffs believed the Big Kid in question was a safety child restraint seat
and that it would provide safety to JB in motor vehicle accidents, including side impacts.
244. Plaintiffs believed the Big Kid in question would provide effective
restraint for JB in foreseeable motor vehicle accidents, including side impacts.
245. Plaintiffs believed the Big Kid in question was suitable, safe, and
appropriate for children, like JB, who weighed less than 40 pounds.
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246. Plaintiffs believed that the Big Kid in question was fit for its intended
purposes.
247. Plaintiffs believed that EVENFLO knew or had reason to know of the
particular purpose for which they intended to use the safety booster seat, and they relied
on EVENFLO's words, skill, expertise, testing, evaluation, and judgment to select,
advertise, and furnish a safety booster seat that would be suitable for use by JB, who
weighed less than 40 pounds.
children, including JB, deliberately concealed and otherwise failed to disclose to
"restraint"
Plaintiffs that it knew the Big Kid was not a that made "SAFETY. SO
SIMPLE!"
and that to even imply that it would restrain a child or provide safety,
especially in a lateral crash, was false, fraudulent, unfair, and a blatant misrepresentation
that would seriously mislead consumers, including Plaintiffs.
Plaintiffs that it knew the Big Kid would not provide adequate or effective restraint for
children weighing less than 40 pounds in automobile crashes, especially in side impact
crashes.
Plaintiffs that it knew a booster like the Big Kid was not suitable, safe, or appropriate for
children who weighed less than 40 pounds and, in fact, that it had such actual knowledge
at the April -
latest, by 1, 1989 25 years before JB's crash.
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251. EVENFLO deliberately concealed and otherwise failed to disclose to
"ONLY"
Plaintiffs that it knew it was selling the Big Kid in Canada labeled for use with
children who weighed at least 40 pounds and that one of the reasons for that use
restriction was the danger of inadequate upper torso and head restraint.
Plaintiffs that it knew that the Big Kid seats it sold in Canada contained labeling and
instructions that EVENFLO wrote and that specifically stated that the seat was designed
"ONLY"
for children weighing over 40 pounds and that if such booster seats were used
for children who weighed less than 40 pounds, "you will increase your child's risk of
death"
injury or and that such use "creates a dangerous situation that is likely to result in
stop."
serious injury or death for your child in the event of a crash or sudden
children, including JB, concealed and otherwise failed to disclose to Plaintiffs that it
knew, since as early as 1989, that various governmental and non-governmental safety
organizations in North America with significant expertise in child transportation safety
issues recommended against using a booster seat for a child who weighed less than 40
pounds, all as more fully set forth in the preceding paragraphs herein.
Plaintiffs that it knew its booster seats had been implicated in numerous complaints and
lawsuits where children had been seriously injured or killed because they had used the
seat when they weighed less than 40 pounds or because the design of these seats allowed,
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caused, and encouraged ejections and/or very serious injuries in certain types of
foreseeable crashes, especially side impact crashes.
Plaintiffs that it knew the Big Kid would not adequately protect a child who weighed less
than 40 pounds a collision - a side impact collision - and that it could

during especially
actually enhance injuries to such children in that its design permitted and encouraged
excessive upper torso movement and head excursion, head impact with the interior of the
automobile, and partial ejection from the child from the seat.
Plaintiffs that it knew there were better and safer alternatives to booster seats for children
weighing under 40 pounds, including forward facing seats with integrated harnesses,
robust side structures, and LATCH attachments.
257. Plaintiffs did not have any knowledge, actual or constructive, of any of the
above facts. At the same time, EVENFLO knew or had reason to know that Plaintiffs
and other similarly situated persons lacked such knowledge and that they could not
Kid,"
possibly realize the dangerous propensities of the "Big particularly in the face of
attention grabbing point of purchase information that conveyed the message that the "Big
Kid" SIMPLE!" Tested,"

provided "SAFETY. SO that it had been "Side Impact and that
it was unquestionably suitable for children who weighed as little as 30 pounds.
258. None of the information, statements or recommendations set forth above
were on, with, or near the Big Kid in question at its point of sale.
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259. At the time plaintiff, JASON BROWN, purchased the EVENFLO Big Kid
Booster Car Seat Model No. 30911120, on March 5, 2014, and up to and including July
5, 2016, defendant, EVENFLO, falsely and fraudulently represented to plaintiffs that that
child,"
the Big Kid was "the best way to minimize injuries to your that using the seat
difference,"
would "make a big and that it would "greatly reduce the risk of serious injury
child"
to your in a crash. EVENFLO falsely and fraudulently represented to plaintiffs in
- "restraint."
its marketing materials that the Big Kid was a
260. EVENFLO falsely and fraudulently represented to plaintiffs that the Big
Tested,"
Kid Booster was "Side Impact that it would provide side impact protection, and
SIMPLE!"
that it made "SAFETY. SO
261. EVENFLO falsely and fraudulently represented to plaintiffs that the Big
Kid would safely restrain children who weighed as little as 30 pounds in crashes.
262. EVENFLO falsely and fraudulently represented to plaintiffs and other
"ONLY"
U.S. consumers that the seat had been designed for use with children weighing
30 pounds and above.
263. The true facts were that utilizing the Big Kid did not minimize JB's
injuries.
264. Utilizing the Big Kid did not and does not greatly reduce the risk of
serious injury or death to a child in a crash, especially a side impact crash.
265. The Big Kid Booster was and is not a child restraint.
tested"
266. While EVENFLO used the language "side impact and placed a
logo on the seat with a check mark on it, EVENFLO knew that the Big Kid did nothing to
provide side impact protection. EVENFLO knew that its testing allowed for head and
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upper torso ejection 100% of the time.
267. The Big Kid did not make safety so simple.
268. Utilizing a Big Kid Booster with children who weighed less than 40
pounds "can result in your child striking the vehicle's interior during a sudden stop or
crash" result."
and that "serious injury or death can
269. The true facts were and are that the Big Kid had been specifically
"ONLY"
designed for use with children weighing 40 pounds and above.
270. When EVENFLO made these representations, EVENFLO knew them to
be false, and these representations were made by EVENFLO with the intent to defraud
and deceive the Plaintiffs and consumers and with the intent to induce plaintiffs and
consumers into purchasing the product for defendant's own financial gain
271. That at the time EVENFLO made the above promises to Plaintiffs and the
public at large, it it did so with knowledge of the falsity of same.
272. That EVENFLO had no intention of informing Plaintiffs and the public of
the truth regarding the Big Kid as above-stated.
273. That EVENFLO concealed the true facts by remaining silent and failing to
warn consumers regarding the Big Kid safety issues outlined above, when it had a duty to
do so.
274. That EVENFLO possessed the superior and exclusive knowledge of the
danger of its product, based on its own testing, which was never made available to
plaintiffs and consumers.
275. That the EVENFLO recall that was issued in Canada, was not issued to
EVENFLO's U.S. consumers having purchased the same seat, nor was it made available
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under U.S. recall searches.
276. That at the time these representations were made by defendant and at the
time JASON BROWN purchased the Big Kid Booster Car Seat Model No. 30911120,
Plaintiffs were unaware of the falsity of defendant's representations and believed them to
be true.
277. That Plaintiff, JASON BROWN, believed the Big Kid Booster would
protect his under 40 pound daughter, JB, in the event of a side impact collision.
278. That at the time EVENFLO made the various promises to Plaintiffs
regarding the Big Kid, and at the time plaintiffs purchased the Big Kid Booster Car Seat
Model No. 30911120, Plaintiffs were unaware of the failure of the performance of the
product, intentionally concealed by EVENFLO, and they could not have discovered
same, even in the exercise of reasonable diligence.
279. That in reliance on the various representations made by EVENFLO in its
point of purchase marketing materials, manuals and on the seat itself, Plaintiff JASON
BROWN was induced to and did purchase the Big Kid Car Seat Model No. 30911120.
280. That had plaintiff JASON BROWN known the actual facts as set forth
above, he would not have taken such action as to purchase the product complained of
herein.
281. That plaintiffs reliance on defendant's representations was justified and
plaintiffs herein relied on EVENFLO's representations to their detriment.
282. That as a result of the foregoing, infant plaintiff, JB, sustained numerous,
catastrophic spinal cord injuries and was left a ventilator-dependent, spastic
quadriplegic/tetraplegic. Her injuries are permanent. She became sick, sore, lame and
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disabled; suffered injuries to her nervous system; suffered and continues to suffer mental
anguish, was confined to hospital, rehabilitation facility, bed and home and will, in the
future, be so confined; was and will continue to be incapacitated from attending to her
usual duties and school and will, in the future, be so incapacitated; has and will suffer a
loss and/or limitation of quality and enjoyment of life; has and will suffer conscious pain;
has and will incur medical expenses related to this claim, and infant plaintiff, JB, was
otherwise damaged to her person.
283. That this action falls within one or more of the exceptions set forth in
C.P.L.R. Section 1602.
284. In doing the acts herein alleged, defendant acted with oppression, fraud
and malice and plaintiff is entitled to punitive damages in a sum that exceeds the
jurisdictional limits ofthe lower Courts.
285. That by reason of the foregoing infant plaintiff, JB, has been damaged in
the sum to be determined by the triers of law and fact in an amount in excess of the
jurisdiction ofthe lower Courts.
AS AND FOR AN ELEVENTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF JB AND

JASON BROWN AS AGAINST EVENFLO INC. - DECEPTIVE
DEFENDANT, COMPANY,
BUSINESS PRACTICES IN VIOLATION OF GENERAL BUSINESS LAW §349
286. That Plaintiffs repeat, reiterate, restate and reallege each and every
allegation set forth above with the same force and effect as if the same were more fully
set forth at length herein.
287. That based on the foregoing incorporated herein, EVENFLO engaged in
consumer-oriented misconduct which was deceptive and materially misleading to
reasonable consumers and which conduct had a broad impact on New York consumers at
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large.
288. That defendant EVENFLO materially misrepresented the safety of the Big
Kid both to Plaintiffs and to the community at large in the sale, marketing, distribution
and labeling of same.
289. That EVENFLO's deceptive practices as described above were likely to
mislead a reasonable consumer acting reasonably under the circumstances a to the safety
of the Big Kid and did in fact mislead Plaintiffs as to same in its sale, marketing,
distribution and labeling of the subject Big Kid.
290. That the representation and omissions described above did mislead
plaintiff JASON BROWN, acting reasonably, under the circumstances, as an average
consumer who, in making the purchase of the Big Kid Booster described above, was
by point of purchase marketing, appearances and general impressions.
291. EVENFLO, in its marketing and sales of the Big Kid Booster as described
above, EVENFLO was materially deceptive and misleading both to Plaintiffs and to the
community at large.
292. That EVENFLO knew of the defects and dangers in the Big Kid Booster
and engaged in a deceptive practice in the sale and promotion of its product to Plaintiffs
and to the community at large.
293. That EVENFLO's silence on the actual results of its side impact testing
and failure to warn consumers of same, including plaintiff JASON BROWN, constitutes
a deceptive and misleading practice.
294. That as a result of EVENFLO's foregoing violations of Section 349 of the
General Business Law, , infant plaintiff, JB, sustained numerous, catastrophic spinal cord
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injuries She became sick, sore, lame and disabled; suffered injuries to her nervous
system; suffered and will continue to suffer mental anguish, was confined to hospital,
rehabilitation facility, bed and home and will, in the future, be so confined; was and will
continue to be incapacitated from attending to her usual duties and school and will, in the
future, be so incapacitated; has and will suffer a loss and/or limitation of quality and
enjoyment of life; has and will suffer conscious pain; has and will incur medical expenses
related to this claim, and infant plaintiff, JB, was otherwise damaged to her person.
296. That by reason of EVENFLO's foregoing violations of Section 349 of the
General Business Law, infant plaintiff, JB and plaintiff, JASON BROWN, should be
awarded treble damages.
General Business Law, infant plaintiff, JB and plaintiff, JASON BROWN, should be
awarded punitive damages.
General Business Law, JB and plaintiff, JASON BROWN, should be awarded attomey's
fees.
299. That by reason of the foregoing. infant plaintiff, JB, and plaintiff, JASON
BROWN, have been damaged in the sum to be determined by the triers of law and fact in
an amount in excess of the jurisdiction of the lower Courts.
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AS AND FOR A TWELFTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF JB and

JASON BROWN AS AGAINST EVENFLO INC. - DECEPTIVE
DEFENDANT, COMPANY,
BUSINESS PRACTICES IN VIOLATION OF GENERAL BUSINESS LAW §350 -
FALSE ADVERTISING
300. That Plaintiffs repeat, reiterate, restate and reallege each and every
allegation set forth above with the same force and effect as if the same were more fully
set forth at length herein.
301. That defendant , EVENFLO falsely advertised to Plaintiffs and the general
child,"
public that its Big Kid Booster was "the best way to minimize injuries to your that
difference,"
using the seat would "make a big and that it would "greatly reduce the risk of
child"
serious injury to your in a crash.
302. That EVENFLO falsely and fraudulently represented to plaintiffs in its
- that "restraint."
advertising materials the Big Kid was a
303. That EVENFLO falsely and fraudulently labeled the Big Kid Booster as
Tested" SIMPLE!"
"Side Impact and that it made "SAFETY. SO
304. That EVENFLO falsely labeled the Big Kid that it would safely restrain
children who weighed as little as 30 pounds in crashes.
305. That EVENFLO falsely advertised to Plaintiffs and other U.S. consumers
"ONLY"
that the seat had been designed for use with children weighing 30 pounds and
above.
306. That JASON BROWN, relied on defendant EVENFLO's advertising and
representations in his purchase of the subject Big Kid Booster.
307. That as a result of the foregoing deceptive business practice and false
advertising, infant plaintiff, JB a previously healthy and active 5-year old, was left a
ventilator-dependent, spastic quadriplegic/tetraplegic. Her injuries are permanent. She
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became sick, sore, lame and disabled; suffered injuries to her nervous system; suffered
mental anguish, was confined to hospital, rehabilitation facility, bed and home and will,
in the future, be so confined; was and will continue to be incapacitated from attending to
her usual duties and school and will, in the future, be so incapacitated; has and will suffer
a loss and/or limitation of quality and enjoyment of life; has and will suffer conscious
pain; has and will incur medical expenses related to this claim, and infant plaintiff, JB,
was otherwise damaged to her person.
308. That defendant, EVENFLO, is liable to the Plaintiffs as a result of the
foregoing deceptive business practice and false advertising.
advertising, infant plaintiff, JB and plaintiff, JASON BROWN, are entitled to treble
damages.
advertising, infant plaintiff, JB and plaintiff, JASON BROWN are entitled to exemplary
and punitive damages.
advertising, infant plaintiff, JB and plaintiff, JASON BROWN are entitled to reasonable
attorney's fees.
advertising, infant plaintiff, JB and plaintiff JASON BROWN, have been damaged in the
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sum to be determined by the triers of law and fact in an amount in excess of the
jurisdiction of the lower Courts.
AS AND FOR AN THIRTEENTH CAUSE OF ACTION

ON BEHALF OF PLAINTIFF JASON BROWN
AS AGAINST ALL DEFENDANTS
314. That Plaintiffs repeat, reiterate, restate and reallege each and every allegation set
herein.
315. That plaintiff JASON BROWN is the father and natural guardian of the infant
plaintiff, JB, and as such is entitled to the lost services, society, companionship, and support of
the said infant plaintiff, which plaintiff JASON BROWN, has been deprived of due to the
aforementioned acts/omissions of the defendants.
316. That plaintiff JASON BROWN has been required to expend, and will be required
to expend in the future, large sums of money for plaintiff, JB's medical care and medicines and
the like, all to his damage.
317. That based upon the foregoing, JASON BROWN demands that a money
judgment be entered as against the defendants, jointly and severally, in a sum exceeding the
jurisdictional limits of all lower courts conferring jurisdiction thereof.
AS AND FOR A FOURTEENTH CAUSE OF ACTION

ON BEHALF OF PLAINTIFF JASON BROWN
AS AGAINST ALL DEFENDANTS
318. That Plaintiffs repeat, reiterate, restate and reallege each and every allegation set
herein.
319. That plaintiff JASON BROWN is the father and natural guardian of the infant
plaintiff, SB, and as such is entitled to the lost services, society, companionship, and support of
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the said infant plaintiff, which plaintiff JASON BROWN has been deprived of due to the
aforementioned acts/omissions of the defendants.
320. That plaintiff JASON BROWN has been required to expend, and will be required
to expend in the future, large sums of money for plaintiff, SB's medical care and medicines and
the like, all to his damage.
321. That based upon the foregoing, the plaintiff, JASON BROWN, demands that a
money judgment be entered as against the defendants in a sum exceeding the jurisdictional limits
of all lower courts conferring jurisdiction thereof.
WHEREFORE, plaintiffs, JB, SB, and JASON BROWN, demand a money judgment
against the defendants, jointly and severally, on each cause of action in a sum to be determined
by the triers of law and fact and in an amount in excess of the jurisdiction of the lower courts, all
together with interest, the costs and disbursements of this action, and such other, further and
different relief, as the court deems just, equitable and proper.
Dated: Bayport, New York

November 28, 2017
Yo s, et .
ITE VANAGH, PLLC
: Aileen R. Kavanagh, Esq.
Attorneys for Plaintiffs
JB, SB and JASON BROWN

982 Montauk Highway, Suite 4
Bayport, New York 11705
(631) 419-6919
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VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
JASON BROWN being duly sworn, deposes and says:
Deponent is the parent and natural guardian of the infant

plaintiffs, JB and SB, and a
plaintiff individually in the within action and as such has read the foregoing First Amended
Complaint and knows the contents thereof; that the same is true to deponent's own knowledge,
except as to the matters therein stated to be alleged upon information and belief, and that as to
those matters deponent believes same to be true.
JASON BROWN, as parent and natural

guardian of the infant plaintiffs, JB and SB
and individually
-
S o before me this
ay f .. . 2017
N A P
AILEEN R. MAVANAGH
NotaryPublic, State of New York
No. 01KA4994200
QuaHfied in Suffolk County
Commission Expires May 10, 20
66 of 67
Index No. 614203/2017
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK
JB, an infant under the age of fourteen (14) years by her father and natural guardian, JASON
BROWN; SB, an infant under the age of fourteen (14) years by her father and natural guardian,
JASON BROWN, and JASON BROWN, Individually,
Plaintiffs,
-against-
MARK A. HELUPKA, LINDSEY M. BROWN, TOWN OF BROOKHAVEN and EVENFLO

COMPANY, INC.,
Defendants.
FIRST AMENDED VERIFIED COMPLAINT
KAITERIS & KAVANAGH, PLLC

Attorneys for Plaintiffs
JB, SB and JASON BROWN

982 Montauk Highway, Suite 4
Bayport, New York 11705
(631) 419-6919
(631) 419-6920-Fax
Pursuant to NYCRR Rule 130-1.1-a, the undersigned, an a o dmitted to practice in the

State of New York certifies that, upon information and eli f n reasonable inquiry, the
contentions contained in the annexed paper(s) are not frivolou ,
Aileen R. Kavanagh, Esq.
PLEASE TAKE NOTICE

Notice of Entry that that within is a (certified) true copy of a duly
entered in the office of the clerk of the within court on
Notice of Settlement that an Order/Decision which within is a true copy will be
presented to Hon. , one of the judges of the within named court on
at 9:30a.m.
Dated: November 28, 2017 Yours, etc.,
KAITERIS & KAVANAGH, PLLC
67 of 67

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FILED: SUFFOLK COUNTY CLERK 12/18/2017 12:33 PM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

MARK A. HELUPKA, LINDSEY M. BROWN, TOWN

Plaintiffs, by their attorneys KAITERIS 4 KAVANAGH, PLLC, as and for a First

Amended Complaint, allege, upon information and belief, as follows:

an adult resident of the County of Suffolk, State ofNew York.

County of Suffolk, State ofNew York.

County of Suffolk, State ofNew York.

TOWN OF BROOKHAVEN, was and still is a corporate governmental agency constituting a

body corporate and politic.

defendant, TOWN OF BROOKHAVEN.

occurrence herein described.

10. That a 50-h hearing was not demanded by defendant, TOWN OF

State of New York.

from the State of New York.

or consumed in the State of New York.

EVENFLO COMPANY, INC., is a foreign corporation that engages in interstate commerce.

other juvenile products, car seats for consumer use.

among other juvenile products, car seats for consumer use.

other juvenile products, car seats for consumer use.

juvenile products, car seats for consumer use.

AS AND FOR A FIRST CAUSE OF ACTION

registration number HDL7285.

MARK A. HELUPKA, was the operator of the aforesaid motor vehicle.

implied of the owner.

MARK A. HELUPKA, managed the aforesaid motor vehicle.

MARK A. HELUPKA, controlled the aforesaid motor vehicle.

MARK A. HELUPKA, maintained the aforesaid motor vehicle.

MARK A. HELUPKA, was the lessee of the aforesaid motor vehicle.

MARK A. HELUPKA, was the lessor of the aforesaid motor vehicle.

registration number BRU6910.

LINDSEY M. BROWN, was the operator of the aforesaid motor vehicle.

implied of the owner.

LINDSEY M. BROWN, managed the aforesaid motor vehicle.

LINDSEY M. BROWN, controlled the aforesaid motor vehicle.

LINDSEY M. BROWN, maintained the aforesaid motor vehicle.

LINDSEY M. BROWN, was the lessee of the aforesaid motor vehicle.

LINDSEY M. BROWN, was the lessor ofthe aforesaid motor vehicle.

defendant, LINDSEY M. BROWN.

Road, County of Suffolk, State ofNew York.

Randall Road, County of Suffolk, State ofNew York.

York, the aforesaid motor vehicles collided.

49. That as a result of the foregoing, plaintiff, JB, was injured.

State of New York.

also to her property.

§5102(d) of the Insurance Law of the State of New York.

AS AND FOR A SECOND CAUSE OF ACTION

York, the aforesaid motor vehicles collided.

by defendant, LINDSEY M. BROWN.

61. That as a result of the foregoing, plaintiff, SB, was injured.

State of New York.

also to her property.

§5102(d) of the Insurance Law of the State of New York.

AS AND FOR A THIRD CAUSE OF ACTION

and dangerous to motor vehicles operating thereat.

remain in an otherwise dangerous, hazardous, and trap-like condition, so that it became

82. As a result of the negligence of the defendant, TOWN OF BROOKHAVEN, the

location, thereby suffering the injuries and damages hereinatter alleged.

operation, maintenance, control, planning, design, construction, management, placement and