McMahon Case

McMahon, Bouvier, and Slavin v. Murphy,

Suffolk Superior Court C.A. No. 99-3326-E

Type of Action: Premises Liability-Fire Escape Collapse

Injuries alleged: Open compound ankle fracture with insertion of surgical hardware (plaintiff #1); C5-6 intervertebral disc (plaintiff # 2); pelvic fracture and concussion (plaintiff # 3)

Result: $337,595.30 Settlement

Date: January 29, 2002

Case Summary:

The three plaintiffs were injured when they were on an outdoor stairway/fire escape which collapsed. The stairway/fire escape was attached to the second floor of a triple decker, which was rental property owned by the defendant. The same day plaintiff’s counsel was retained, an injunction was obtained preserving the wreckage of the stairway/fire escape so that it could be inspected by plaintiff’s construction expert. Based upon this inspection, plaintiff’s expert concluded that the stairs were improperly attached to the building and improperly maintained, in violation of the Massachusetts State Building Code, the Massachusetts State Sanitary Code; and the NFPA Life Safety Code. Discovery subsequently revealed that the defendant failed to have the stairway/fire escape inspected by a qualified individual as required by law.

At the time of the accident, plaintiff # 1 was the third floor tenant of the defendant. The other two plaintiffs were his guests. They were let onto the second floor fire escape by an individual who was helping the second floor tenant move out. The plaintiffs were going down the fire escape to retrieve a mattress left in the back yard by the second floor tenant. As eviction proceedings had been commenced against the second floor tenant at the time, the defendant argued that the plaintiffs were trespassers. Plaintiffs were prepared to offer evidence that the individual who let the plaintiffs onto the fire escape was there with the defendant’s knowledge and consent and authority that under Massachusetts housing law the second floor tenant and her designee were still lawfully in possession of the premises.

Plaintiff #1 sustained a compound ankle fracture requiring insertion of surgical hardware. At the time of the accident, he was fifty eight years old and as a result of his injuries uses a cane and is permanently unable to return to his occupation of courier driver. Plaintiff # 2 sustained a cervical disc injury which causes him discomfort while working as a hairdresser. Plaintiff #3 sustained a pelvic fracture (not requiring surgery) and a concussion.

Resolution of this case was complicated by a lack of any liability insurance coverage. Plaintiff’s counsel obtained an attachment on the property where the accident occurred and two attached triple deckers also owned by the defendant. Plaintiff’s counsel subsequently obtained another Court order prohibiting the defendant from conveying any other property which he owned or controlled in the Commonwealth (aside from his personal residence). This turned out to be one additional triple decker. Unfortunately, there were substantial mortgages and unpaid real estate taxes on all four properties. This ultimately resulted in foreclosure proceedings being commenced by defendant’s mortgage lender.

The case was mediated before J. Owen Todd. A settlement was reached in which three of the triple deckers would be sold, at a price agreeable to plaintiffs, and 100% of the proceeds, after payment of mortgage balance, outstanding taxes, and costs of sale would go to plaintiffs. The remaining triple decker would be sold with 40% of the proceeds going to plaintiffs. The sale of the first three triple deckers eventually netted plaintiffs $281,139.43. The sale of the remaining triple decker netted plaintiffs an additional $56,455.87.

The interval between the settlement agreement in principal which was reached at the mediation and release of the final sale proceeds from escrow was approximately ten months. During this time a complex Settlement Agreement was negotiated and drafted, intensive investigation into defendant’s assets were performed; and numerous additional negotiations were conducted. A substantial reduction in plaintiff #1's health insurance lien was also negotiated. Prior to the mediation, independent appraisals of the properties were performed on plaintiffs’ behalf and an agreement was reached by all three plaintiffs on division of any settlement proceeds. By the date the sale of the remaining triple decker closed, defendant’s mortgage lender had already scheduled a foreclosure sale of the property.