Volkswagen sued after teens involved in rollover

Michelle Massey, East Texas Bureau Oct. 7, 2008, 3:48am

MARSHALL - The parents of two teens involved in a rollover accident have sued Volkswagen, alleging the vehicle was defectively designed.

According to court papers, 16-year-old Samuel McGilvra was driving his girlfriend in a 2006 Volkswagen Beetle. The VW left the road and McGilvra lost control. According to the accident report, McGilvra overcorrected the vehicle, causing it to roll.

McGilvra was partially ejected and killed, while his girlfriend, 17-year-old Ashley Kitchings, was severely injured, rendering her a paraplegic.

Alleging the Beetle was defective, Samuel's parents Earl and Juanita McGilvra, Ashley Kitchings and her father Michael Kitchings filed a product liability suit against Volkswagen on Sept. 30 in the Marshall Division of the Eastern District of Texas.

According to the plaintiffs' complaint, both teens were wearing their seatbelts at the time of the accident.

The plaintiffs argue that the vehicle was defective due to its handling and stability characteristics, occupant protection system, occupant containment systems and its restraint devices.

The lawsuit asserts that Volkswagen is responsible for the damages due to negligence, breach of implied warranties, and strict liability for defective design, manufacture and marketing of the 2006 Volkswagen Beetle.

The complaint argues that the death and injuries could have been prevented through safer design alternatives that include "electronic stability control, seats less prone to failure during rollover events, ABTS/seat-integrated restraints, rollover-activated seat belt pretensioners, rollover-activated side-curtain airbags, and side glass less prone to breakage and/or failure during rollover events."

Earl and Juanita McGilvra are seeking wrongful death damages, including pecuniary loss, loss of companionship and society, mental anguish, and funeral and burial expenses. The family is also seeking damages for their son's pain, suffering and mental anguish.

The Kitchings are seeking damages for medical expenses, physical pain and suffering, mental anguish, lost wages, loss of earning capacity, disfigurement, and physical impairment.

Seeking punitive damages, the plaintiffs allege that Volkswagen's "gross neglect and callous disregard" for the "unreasonably dangerous" vehicle caused the injuries.

Houston attorneys J. Hunter Craft and Mikal Watts of the Watts Law Firm and Tyler attorney Randell Roberts of the law firm Roberts and Roberts, P.C. are representing the plaintiffs.

U.S. District Judge T. John Ward is assigned to the litigation.

Case No: 2:08cv00370

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