Archive for Tuesday, October 2, 2007

Mother files suit against Boardwalk Apartments over deadly fire

October 2, 2007


The mother of a KU student killed two years ago in a fire at the Boardwalk Apartments has filed a lawsuit against the apartment complex in Douglas County District Court.

Nancy Bingham is suing Boardwalk Apartments, the management company, the fire equipment safety contractors and several unnamed construction companies that performed renovations on the apartments leading up to the Oct. 7, 2005 fire. Her daughter, Nicole Bingham, was one of three people killed in the blaze.

Jason Rose was convicted of setting the fire and is currently serving a 10-year prison sentence.

In the lawsuit, Bingham claims the apartment complex was negligent for lacking adequate fire escapes, alarm systems and had an inadequate fire suppression system.

The lawsuit also claims the construction techniques and materials "unreasonably increased the risk of a catastrophic fire."

Bingham is seeking more than $75,000 in damages.


Baille 10 years, 7 months ago

She is not "only" seeking $75,000.00. That phrase is in the petition because of the way Kansas civil procedure works. If in excess of $75k, the exact amount does not have to be pled with specificity with the idea that the entire amount of damages, if any, will be fleshed out during discovery. Anything less than $75,000.00 must be pled with specificity.

KSA 60-208 (a) Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain: (1) A short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief to which the pleader deems such pleader's self entitled. Every pleading demanding relief for damages in money in excess of $75,000, without demanding any specific amount of money, shall set forth only that the amount sought as damages is in excess of $75,000, except in actions sounding in contract. Every pleading demanding relief for damages in money in an amount of $75,000 or less shall specify the amount of such damages sought to be recovered. Relief in the alternative or of several different types may be demanded.

Ragingbear 10 years, 7 months ago

Offtheright, that was an asinine statement if I ever seen one. I was one of those victims. You can't go around blaming victims for the incident. I had told some people that if a good fire ever got started there, that it would go up like a box of matches. What I didn't know is that it would go up like a box of matches soaked in kerosene. It wasn't like it was some sort of festering cesspool like those places on Redbud Lane and area. Apartments that don't cost an arm and a leg are hard to find in Lawrence. Even at that, these apartments were not cheap. There is a certain level of expectation given with every place that you rent. One of them being that the equipment installed to ensure safety actually works. Instead of installing fire detectors, they installed smoke detectors. What this means is that if you hold a flame up to the thing, that it will not go off. Having lived there myself, I also found that you would have to hold a smoldering piece of paper right under it for over a minute in order for them to be set off.

This is combined with many issues that the managers would just sweep under their rug. They knew that the fire extinguishers were recently taken from certain areas, and were just pussyfooting around getting replacements. They also knew that there were large amounts of dry leaves and dry-rot around the foot of the building. Excellent kindling for a fire. Although it was arson that caused this fire, it could just as easily have been a stray ember from a cigarette.

This case is not entirely clear though. Who was responsible? The answer is that several people are. This includes the construction companies that chose to cover up the massive amounts of dry rot instead of replacing the damaged areas. The city is also partially at fault, accepting that half baked excuse that the building was only 2 1/2 stories instead of 3 because they shoved earth up against the back wall when they built it. I frankly believe that palms were greased there.

I have contemplated a lawsuit myself. To this day, I am bombarded with the constant fear that when I go to sleep, or when I leave that there will be a fire in my apartment. I lost a lot of money there, as I had just purchased many things as I tried to rebuild my life. Am I going to try to make retirement from them? No. I personally see my damages around 10k. I probably won't sue. I probably won't even put my name on a class action suit.

acg 10 years, 7 months ago

All ottr is good for is asinine statements ragingbear, I figured you knew that by now. Just shoo him, like I do, and eventually he'll fly off to annoy someone else.

justthefacts 10 years, 7 months ago

And there is a two year statute of limitations that would have run in about 5 days now, so anyone wanting to file a suit based upon something that happened (or was discovered) on 10/7/05 needed to get it on file FAST! Most personal injury lawyers do not like waiting until the very last minute to file, and will get something done sooner then the last minute - if their case is strong. But mom may not have checked with an attorney until lately. Who knows.

Brian Elm 10 years, 7 months ago

I'm not trying to be asinine, but how were the owners of the apartment complex not a victim as well in this case? They lost something too. So if you say you can't blame the victims, something here isn't right. I'm sure they could have been better prepared for the worst (which is the reason for them sueing most likely) but who expected someone to set the place on fire?

Baille 10 years, 7 months ago

Maybe negotiations broke down? I wish Douglas County had their records online like the other big - and several not so big - counties.

Confrontation 10 years, 7 months ago

OTTR doesn't care, as long as his offspring weren't harmed.

acg 10 years, 7 months ago

I totally agree with your reasoning bmelm. Maybe the mother is suing because the sprinkler system wasn't up to code? But then again, if the complex was grandfathered in, I'm not sure what legal leg she could stand on. Darn it, where's baille? Baille could tell us exactly what grounds she'd have to sue on.

imastinker 10 years, 7 months ago

I don't know - this seems very frivolous to me. Leaves and dry rot are the best reason? Smoke detectors instead of fire detectors??

You guys all know that for the most part the only time that heat sensors are used is in environments that see a lot of dust. I use one in my wood shop. This is common practice.

But suing the construction companies??? THAT takes the cake. Those people are just looking for anyone that has money. I hope the judge laughs them out of court.

Ragingbear 10 years, 7 months ago

Sprinkler system up to code? That would require the existence of a sprinkler system in the first place, but there was none.

Baille 10 years, 7 months ago

I don't know, ACG. In a nod to jtf, that is very fact dependant. Theories of negligence in a matter of premises liability are dependant on applicable codes and expert testimony, but in the end it mainly comes down to the facts. And we don't know them. I would like to see a copy of the petition, though.

As for stinker, you can't say this is frivolous. You don't know.

And the Plaintiff pretty much has to sue the construction companies. In Kansas, defendants can compare negligence to reduce their perentage of the consquential damages. They can blame other entities whether or not eentities are parties and if the jury agrees then the Plaintiff can lose so much money as to make the suit worthless. Remember Kansas has not upped its damage caps in over 30 years. Collectively, we hate holding wrongdoers responsible and have gone out of our way to protect those who commit negligent acts from having to pony up and pay for dmage caused.

Furthermore, if the plaintiff does not include all the possible defendants and the deadline runs (in a few days) and then it turns out during discovery that the greatest fault is with an unnamed party, the plaintiff could be out of luck and the plaintiff's attorney could get hit with malpractice. If you don't like the necessity of the shotgun pleading, I can't say I blame you, but the fix is with fair legal reform not the corporate and insurance crap that has been shoved down our throats for the past 30 years.

imastinker 10 years, 7 months ago

was a sprinkler system required ragingbear?

I'm not even sure a sprinkler system would ahve done much good on this type of fire. By the time that much heat gets to the sprinkler head, the fire is clear through the wall. You couldn't put enough water on that fire with a 2" water meter at that point.

Sharon Roullins 10 years, 7 months ago

Wow, you are right, no one forced those people to live there, just like my daughter. She was a resident at Boardwalk and believe it or not, the smoke detector never went off. By the time she realized there was a fire, her only way to escape was through her second floor bedroom window. No one could have been prepared for the tragic events that took place that night. She couldn't even leave in her car, because it was damaged, several feet away, from the heat of the fire. Don't be so quick to make comments like this if you haven't had first hand experience.

Sigmund 10 years, 7 months ago

This will be an interesting trial. If Boardwalk Apartments met or exceeded code, it might be a difficult case to prove. A battle of experts is brewing. Still, can you imagine a jury in Douglas County NOT finding for the mother of a student killed in a fire, because I can't. My heart goes out to her, but my head wants to be sure Boardwalk Apartments standard of care fell well below reasonable before they are held liable.

greenworld 10 years, 7 months ago

Boardwalk is a slum place to live. The place is over 50 yrs old and not in compliance with code at all. They re-paint the walls upon every new tenant moving in and then give you a brochure stating that their is lead based paint used at one point in time and not to worry. The fire department has tried to make them change things but they would have to destroy every building and start over just to make it meet todays code and Boardwalk not going to do that. I have live their various times and really never had a problem with the living conditions but I also didnt stay their very much when I did live their and also it was prior to the fire. So I never ate or swallowed any smoke in my sleep either or I would own that place if I lived through it. I feel terrible for what happened to those people and something should pay the price and assume responsibility for what happened and I havent seen anything like that happening yet. I would go for the juggler and sue for 1 million or you are wasting your time. Your attorney is going to get half anyway if they do decide to settle. 75k just isnt enough for the loss of a loved one. My opinion,

Baille 10 years, 7 months ago

"...standard of care fell well below reasonable before they are held liable"

This is not an attack at all, Sigmund, but I am curious about your comment. Juries very often hold plaintiffs to a higher burden than the law calls for. For instance, if the burden in this case is actually a burden to persuade that it is more likely than not (51% likely) that some entity fell below the applicable standard of care - even if just a little - could you find for the plaintiff? 51% likely that some entity fell just a shade shy of the applicable standard?

In my experience, while this may be the law, juries struggle with it and oftentimes hold the plaintiff to a higher burden. I would be interested in knowing what others think about this.

Sigmund 10 years, 7 months ago

Baille, by the time the jury is finished listening to the hired gun experts from both sides on this case they will be able to justify any decision they choose. Mothers are more sympathetic than landlords, and although the issue of insurance will not be brought up, juries are pretty savvy about such issues.

Even I would have a very hard time telling this mother, who lost her child in this horrible fire, that nothing can be done to compensate for her grief. Rose is judgment proof, waste of time there. So even if I believed Boardwalk Apartments met the minimum of every code requirement, but did not exceed those requirements in any way, I would be tempted to find something in plaintiffs case to allow some form of compensation. But in defense of Douglas County juries, I think they honestly do their best without either falling into "lets soak the evil landlord" or "she is trying to get rich of her child's death" mode.

I am glad I wasn't on the criminal jury and I'll be even happier not to be on the civil jury.

Baille 10 years, 7 months ago

I am not being critical of any particular jury or any county's jury pool. But I think there is a tendency of juries no matter where seated to hold Plaintiff's to a higher burden.

classclown 10 years, 7 months ago

Concerning the working conditions of the smoke alarms. Were they hard wired or battery operated?

If battery operated, whose responsibility was it to to change the batteries (every time change as per all of those commercials)?

Whose responsibility was it to test them once a month as per all those commercials? As a tenant, wouldn't you want to make sure they worked for your own piece of mind?

Were any alarms tested and found not to be in good working order reported to management?

I'm not victim bashing here, just wondering who is responsible for what from a legal standpoint.

m1983 10 years, 7 months ago

imastinker- i hope you experience what Ragingbear and Nicole did.. I hope you experience what you're mocking, and down playing, or better yet, what we, Nicole's friend's and family have experienced being on the other side and trying to make sense of this. Nancy Bingham is NOT frivolous, and you're suggestion of that just heightens your ignorance. She is EVERYTHING BUT THAT. and if you consider what happened on 10-7-2005 frivolous or basically the result of moldy leaves, get your head out of the effing sand.

This actually goes for all of you who make this into a debate about whether a lawsuit is legit or not for a,b,c reasons.. I hope you never experience what happened on a first hand basis, and I hope you never experience a loss like Nancy and countless others have because of this fire. All of you need to remember that ACTUAL people are involved in this, and it's not just some forum to throw around assine opinions, and accusations.

Bitter 10 years, 7 months ago

As a juror in the criminal case (who thought Jason should have gotten way more than 10 years) the comments that there SHOULD be a civil case were definitely uttered! Can't tell you how many times we heard that no alarms went off. I would think the McHatten girl would be in on a suit also. In addition to the other victims who testified.

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