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JURY AWARDS $2.6 MILLION TO BOY INJURED IN MOWER ACCIDENT Case: Timothy R. Marcotte and Cindy L. Marcotte as Legal Guardian of Timothy N. Marcotte, a minor v. Kohler Co., Miami-Dade Circuit Court Case No: 98-30113-CA-02 Judge: Ronald M. Friedman Trial Date: 2004-02-21 Filing Date: 1998-12-31 Plaintiff Attorney: Brett A. Weinberg and Sagi Shaked of the Law Offices of Brett A. Weinberg, Coral Gables Defense Attorney: Ricardo J. Cata of Wilson Elser Moscowitz Edelman & Dicker, Miami Details: In 1993, Timothy Marcotte, who was 7 years old at the time, visited his grandfather’s house in south Miami-Dade. During the visit his mother, Cindy Marcotte, began mowing the lawn with a “Dixie Chopper” riding lawn mower. According to the plaintiffs, Timothy walked behind her as she mowed. She stopped short and the child, still moving forward, put his left hand out to brace himself. According to the plaintiffs, his hand came into contact with the lawn mower engine, which rested behind the riding seat. Timothy’s hand touched an exposed engine part that was rotating at about 360 revolutions per minute. As a result, his hand was severely injured. His hand was disfigured and he lost strength and function of his left thumb. Timothy was in the hospital for two weeks following the injury. He did not lose any fingers. In December 1998 the Marcotte family sued Wisconsin-based engine-maker Kohler Co., Indiana-based Magic Circle Co., which manufactured the “Dixie Chopper” lawn mower, and Power Mower Sales, the Miami retailer that sold the mower. It sued under the theory of product liability and breach of implied warranty. In January 2003 the Marcottes jointly settled with Magic Circle and Power Mower Sales for $175,000. The lawsuit against Kohler, which made the engine, proceeded and went to trial on Jan. 5, 2004. Plaintiffs’ case: The plaintiffs argued that Kohler was aware of the exposed rotating engine part and had produced a safety guard that covers the part in question but chose to not install it. They also argued that Kohler failed to advise Magic Circle, the lawn mower manufacturer, that it had developed a safety guard. Plaintiff's Case: The plaintiffs argued that Kohler was aware of the exposed rotating engine part and had produced a safety guard that covers the part in question but chose to not install it. They also argued that Kohler failed to advise Magic Circle, the lawn mower manufacturer, that it had developed a safety guard. Defense Case: Kohler, according to the plaintiffs, put forth a host of arguments. It argued that Cindy Marcotte, Timothy’s mother, was at fault for operating the lawn mower at night. It claimed that the incident did not occur as the plaintiffs alleged. They argued that Timothy reached under the lawn mower and came into contact with one of the rotating lawn mower blades. Kohler would not be liable in such a scenario because it did not manufacture the blades. The engine maker argued that it had sold 900,000 engines and there had been no previous reported problems. Lastly, it argued that Magic Circle Corp., the lawn mower manufacturer, should be liable because it constructed the lawn mower. Kohler’s attorney declined comment other than to say that it planned to file post-trial motions and, if necessary, an appeal to the 3rd District Court of Appeal. Outcome: After a six-day trial, on Jan. 12 a six-person jury deemed Kohler liable for the accident. It determined that Timothy suffered $2.6 million in damages. Magic Circle Corp., which was not a defendant in the trial because it had previously settled, was found 25 percent liable. … 1

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