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Pittsburgh zoo mauling suit hinges on liability

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By Adam Smeltz
Tuesday, June 4, 2013, 12:01 a.m.
 

The Whitehall woman suing the Pittsburgh Zoo & PPG Aquarium over the mauling death of her only child could be named a defendant and face stern scrutiny in court if zoo leaders try to limit their liability, legal analysts warn.

Yet, they say odds are slim that the wrongful death complaint filed on behalf of Elizabeth Derkosh, 34, and her husband, Jason, 37, will reach a jury. Both sides should have plenty of reasons to negotiate in private and keep the rare case away from a public trial, the analysts say.

“I can only imagine what this poor mother has gone through in dealing with this. Having to relive it over and over again on the stand and in deposition would be horrible,” said Christopher Robinette, an associate professor with Widener University School of Law in Harrisburg. “Of course, from the zoo's perspective, it's very bad publicity. You can get hit with an enormous (judgment) from a sympathetic jury.”

Neither zoo officials nor Derkosh family representatives answered questions on Monday from the Tribune-Review.

Attorneys for the Derkoshes initiated the lawsuit on May 23 in Allegheny County Common Pleas Court, alleging the zoo “blatantly ignored” a warning about a wild dog exhibit where Maddox Derkosh, 2, fell from his mother's arms into the enclosure on Nov. 4.

Zoo worker Lou Nene told horticulture curator Frank Pizzi he was worried a child could tumble into the exhibit of African painted dogs because he often saw parents hoist youngsters onto a railing or hold them up to see the animals, according to the complaint. Pizzi told Nene that wasn't his concern, the complaint says.

If that allegation holds up, lawyers said, it could become a crucial illustration that the zoo should have spotted a problem.

“It would be evidence of the fact that the risk was known to the zoo. The zoo could no longer say, ‘We never imagined that could happen,' ” said S. Michael Streib, a Duquesne University law professor. “If an ordinary worker can see the risk, it certainly should be apparent to people who have expertise in risk management for these types of animals.”

Still, that wouldn't necessarily absolve Elizabeth Derkosh of responsibility if the case lands before a jury, Streib and other analysts said. The Derkosh complaint shows she lifted and held Maddox on an observation deck to give him a better view.

He lurched forward and slipped from her grasp, descending onto a debris net and then bouncing onto the ground among the dogs, according to the complaint. Medical examiners identified more than 220 injuries on his body.

Downtown-based attorney Gary J. Ogg said the case could become a legal tug-of-war if the zoo alleges Elizabeth Derkosh was negligent by lifting her son.

“Letting him fall into the pit is certainly going to be an allegation,” Ogg said. He said the zoo could attempt to limit any financial payout by trying to establish that Elizabeth Derkosh was partly responsible for the accident — a calculation state law allows.

To Los Angeles trial lawyer Shelley Kaufman, the division of blame is clear: It rests entirely with the zoo, she said.

“It shouldn't happen. She should not be able to hold him where it's possible that somebody could be dropped into the enclosure. I don't think it's 50/50 (blame),” said Kaufman, who helped negotiate a settlement following a fatal tiger attack in 2007 at the San Francisco Zoo. “I think the zoo has complete and total responsibility so people can't get near, so there can't be an accident.”

Either way, any settlement agreements between Pittsburgh Zoo and the Derkoshes likely would be confidential, said Dave Landay, a Downtown-based personal injury attorney.

“No matter what happens, it's tragic. You can't bring back the child. All you can do is try to get some justice and compensation for the family,” Landay said. “Maybe with this lawsuit, they will make some changes and this won't happen again.”

Adam Smeltz is a Trib Total Media staff writer. Reach him at 412-380-5676 or asmeltz@tribweb.com.

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