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Trial set in former student’s lawsuit



Published: Sat, January 16, 2010 @ 12:00 a.m.

By Rick Rouan

rrouan@vindy.com

A former Poland Seminary High School student’s lawsuit against the school district, the board of education and two employees over a head injury suffered during a band practice is set for trial next summer.

Mark DeMartino’s lawyer said the former student was struck in the head with a tobacco-canister lid thrown from underneath a school lawn-mower in August 2007.

Now DeMartino is suing the district, the band director and the school employee who was driving the lawn mower.

Lawyers for both parties met before Magistrate Dominic DeLaurentis of Mahoning County Common Pleas Court to set deadlines for exchange of information and a trial date. A jury is set to hear the case June 28, 2011.

The lawsuit alleges that the school district, board of education, band director Nick Olesko and Ben Mashburn, a lawn-mower operator, were negligent in allowing Mashburn to mow grass near where the band was practicing and ultimately causing injuries to DeMartino.

DeMartino suffered head injuries, including a fractured skull and brain trauma, and has paralysis on the left side of his face and “sensation deficits” in his left hand, according to the lawsuit.

Now a student at the University of Toledo, DeMartino is struggling with a reduced schedule, said Dennis P. Mulvihill, DeMartino’s Cleveland-based attorney.

Mulvihill said it’s too early to determine how much in damages DeMartino will seek, though he did say that DeMartino’s medical bills from the injury have exceeded $100,000. The lawsuit says he seeks “an amount well in excess of $25,000” from all defendants, individually and collectively.

On Aug. 16, 2007, the marching band was practicing in the parking lot for the upcoming football season, according to the lawsuit, and Mashburn was mowing “various athletic fields and nonathletic field lawns adjacent to the high school” with a commercial riding lawn mower.

Olesko granted Mashburn permission to mow near where the students were practicing, a violation of school rules and the lawn mower’s instructions and warnings, according to the lawsuit, which was filed in July 2009.

Lawyers for DeMartino also allege in the lawsuit that Mashburn removed the bag that catches grass clippings and did not attach a safety guard in compliance with the lawn mower’s instructions and warnings. Lawyers for the district deny that allegation, and also that Olesko granted Mashburn permission.

The mower struck the lid, throwing it toward where the band was practicing, striking DeMartino in the right side of his head, causing him to lose consciousness, according to the lawsuit.

But Lindsay F. Gingo, a Cleveland-based lawyer for the school district, said that the cause of DeMartino’s injury has not been established.

“The Plaintiff [DeMartino] was injured by an unknown cause during band practice,” according to the school district’s answer to the lawsuit.

In that answer, the attorneys for the school district also wrote that DeMartino assumed the risk of injury and damage and that any injuries “were caused by intervening and superseding factors and/or events over which Defendants had no control.”


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