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Hilltown Archives — The Altamont Enterprise, June 25, 2009

After boy’s death, lawsuit?

By Zach Simeone

KNOX — Last month, 13-year-old James Wyatt Spencer died after his off-road vehicle rolled over on top of him. With a multi-party investigation still underway, the Spencer family’s attorney said this week that a lawsuit is likely, but the Albany County Sheriff’s Department blames unsafe vehicle operation for the accident.

On May 28, Spencer took his brand new Yamaha Rhino out for a ride around his home on Bozenkill Road with his 14-year-old friend. They had skipped school to try out the new vehicle, which Spencer’s parents gave to him that day. At about 4 p.m., the Rhino flipped over on top of Spencer. He was taken to Albany Medical Center, where he died at 5:10 p.m. as a result of massive head trauma. His friend was not injured. [For a full report on the accident, go to www.altamontenterprise.com, under archives for June 4, 2009.]

While it is certain that neither boy was wearing a seat belt or a helmet, and that both were under Yamaha’s 16-year age recommendation for operating the vehicle, the accident is still being investigated by the Albany County Sheriff’s Department, Yamaha, and the United States Consumer Product Safety Commission (CPSC).

Deputies from the sheriff’s department have been to the scene of the accident.

“Right now, it’s our opinion that excessive speed and inexperience were the cause,” said Chief Deputy Craig Apple of the sheriff’s department this week. “I know it upsets the family, but the kid was 13 years old, on a thousand-pound piece of machinery.”

The evidence, Apple said, lay in the vehicle’s track marks at the site of the accident, and a testimonial from Spencer’s friend, who was riding the vehicle with Spencer on the day of the accident.

“He was traveling downhill,” Apple said of Spencer. “It was high, wet grass, and what he did was he came down and turned hard to the right. The front wheel dug into the ground and flipped the vehicle over.”

Still, the boy’s father blames the vehicle.

“If I was made aware at the store when I was purchasing this that there were rollovers, I would have never even considered buying this thing,” James Spencer said. “I want to know who’s up there in the captain’s seat and says, ‘Oh, well, if it kills 50 or 60 people, and we can still make a billion dollars, let’s just go ahead with it.’”

Representing the Spencers in the case of their son’s death is attorney Edmund J. Scanlan out of Chicago.

A lawsuit is “the current plan,” Scanlan told The Enterprise this week. “We have some engineering analysis that we need to do. Nothing is certain, and it’ll need a little further investigation so that we feel more comfortable in the allegations we’re making.”

Those allegations, Scanlan said, are: “That Yamaha and its dealers failed to advise purchasers of this particular model that it had been subject to a voluntary repair program, and of things that were known by Yamaha about this vehicle’s propensity to rollover. The Spencers were unaware of the repair program to make it safer; had the Spencers known, they would not have purchased the vehicle,” he said.

The lawsuit, if it goes forward, will certainly be against Yahama, said Scanlan, but whether or not the suit will be against the dealership, Gable Motor Sports in Cobleskill, is still unclear.

“We’re still investigating the representations that were made by the dealership,” Scanlan said.

On March 31, the CPSC announced a free repair program for the Rhino. Spencer said he was unaware when he purchased the Rhino that the reason for this program was the vehicle’s history of rollovers.

“CPSC staff has investigated more than 50 incidents involving these three Rhino models,” says a release on the CPSC website from the date of the announcement of the repair program. The three models it refers to are the Rhino 450, 660, and 700 models.

These incidents include “46 driver and passenger deaths involving the Rhino 450 and 660 models,” says the commission. “More than two-thirds of the cases involved rollovers and many involved unbelted occupants. Of the rollover-related deaths and hundreds of reported injuries, some of which were serious, many appear to involve turns at relatively low speeds and on level terrain.”

The repair program involves the installation of a spacer on the vehicle’s rear wheels, and the removal of the rear anti-sway bar, the aim being to reduce the chance of rollovers and improve vehicle handling.

Last Thursday, the vehicle was inspected at the New Scotland branch of the sheriff’s department. Representatives of Yamaha and the CPSC were present, as well as Scanlan, representing the Spencers.

“Well, they confirmed that the repairs were completed,” said Investigator Ronald Bates of the sheriff’s department. The spacers were placed on the back wheels, and the rear anti-sway bar was removed, he said.

“It was pretty much just a visual inspection,” Bates went on. “They did some measurements. The machine was brand new, so there really wasn’t any damage to the machine to document.”

Product Safety Investigator Lori Ann Lytle, who represented the CPSC at the inspection last week, could not be reached for comment.

Sonia Hayes-Pleasant, a spokesperson for the CPSC, said that the commission is, indeed, still investigating the accident, but she would not comment on any details of the investigation, including whether or not the CPSC is coordinating its investigation with the sheriff’s department or Yamaha.

“All I can tell you right now is that it’s open and active, and we’re very concerned, and we’re doing all that we can,” Hayes-Pleasant said.

Yamaha has also done its own investigating at the scene of the accident, though the victim’s father and his attorney said that Yamaha’s representatives were investigating the wrong set of tracks, actually made by the family’s Yamaha Warrior ATV, not by the Rhino. The boy had extensive experience on the ATV, his father said.

“The measurements of the width of the tracks that they’re using will clearly measure out to four-wheeler width, and not Rhino width,” said Spencer.

For now, Spencer remains confident that things will go his way in court, he said.

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