Wilson vs. Bender

Lipcon, Margulies, Alsina & Winkleman, P.A


Wilson vs. Bender and Franklin Sports Industries, Inc.

Case No. 86-2158
Judge Farmer
Court of Common Please Stark County, Ohio

PRODUCTS LIABILITY: Sporting goods. Plaintiff a minor was injured when playing with a Mike Schmidt Batting Tee, which was manufactured by Defendant Franklin Sports Industries, Inc., and owned by Defendant Bender. The batting tee had a ball on the end of the nineteen foot elastic cord which would stretch to approximately 50 feet. One end was anchored to the ground with a u-shaped pin. Plaintiff was pulling on the ball to see how far the elastic cord would stretch when the anchor pulled out of the ground and slingshot hitting the plaintiff in the head. Plaintiff claimed that the anchoring system was dangerous and could have been done differently without a u-shaped pin. Plaintiff claimed that the defendant Bender should have supervised his child playing with the plaintiff in light of the dangerous nature of the batting tee. Defendant Franklin Sports Industries claimed that the plaintiff misused the batting tee because he was using it in an unintended manner. The ball was supposed to be placed on a tee and hit with a bat. Defendant Franklin relied on the finding of the Consumer Product Safety Commission, that there was no substantial product hazard. Defendant Bender claimed he didn’t know the batting tee was dangerous and cross-claimed against Defendant Franklin. Plaintiff was seven at the time of the accident. He suffered head injury, because the tee went 3 mm into his brain. Medical bills totaled approximately $12,000.00. Plaintiff was having headaches two or three times a week for ten minutes. He stumbled on occasion due to weakness on his left side. Emotionally he was having trouble adjusting. However in school his work was satisfactory and he could participate in all sports. DR. MORRIS KINAST pediatric neurologist testified that the plaintiff problem was headaches with a good prognosis since they had decreased from daily to two to three times a week. The risk of seizures was 7 to 10% since it was two years post accident there had not been any. DR. ROBERT DEVIES, psychologist, did psychometric testing which demonstrated an attention disorder which he thought would improve. The major problem would be anxiety. DR. RHINGLAS was of the opinion that portion that the plaintiff had a more than 50% change of developing epilepsy in his lifetime, which could be controlled by medication.

Settled during trial: $515,000.00 defendant Franklin. $25,000.00 defendant Bender.