By Sylvia Hsieh
The Daily Record Newswire
BOSTON, MA — A small firm father-and-sons legal team won a $30.7 million verdict on behalf of a father whose three young boys fell through a frozen lake on a sprawling condominium property.
The suit alleged that the condo association was negligent in failing to protect residents against the hazard of thin ice caused by a piece of equipment that helped drain the lake.
“There was no warning sign, no fence to restrict access and no safety equipment. That’s three strikes,” said winning attorney Timothy S. Schafer, who tried the case with his two sons, Timothy and Todd. The father and sons practice together in Merrillville, Ind.
Still, Schafer said he had to overcome a “knee jerk bias” that caused people to wonder: “‘What were those kids doing on the ice and where were their parents?’”
On a Sunday morning in March 2001, 11-year-old Christopher Kennedy, his twin brother Andrew and their 10-year-old brother James were playing with a neighbor near the lake.
Christopher and the neighbor walked onto the ice, which at first felt strong and thick, but as they walked back toward the shoreline, the ice gave way. Christopher fell into the water and clung to the side of the ice. James ran to help his brother and fell into the water, and then Andrew — who saw both brothers in the water — rushed over and also fell in.
Andrew drowned, James was left with a traumatic brain injury and Christopher survived.
While this type of accident is generally considered an act of God for which plaintiffs can’t recover, Schafer tried the case as a man-made accident caused by a piece of equipment the boys passed on the lake.
The structure, called an overflow crib, worked in conjunction with a nearby earth dam to regulate the level of the lake by circulating water beneath the surface.
Schafer argued that the structure was a hidden hazard that required safety precautions because the moving water thinned the ice above, but was invisible from the surface.
Using a tactic he often employs in medical-malpractice cases, Schafer opened his case by calling one of the defense witnesses first — the director of operations of Lakes of the Four Seasons, a gated condominium complex that featured three lakes, a golf course, a pool and its own police force.
Schafer asked the director if the condo association put up signs warning golf carts to stay on the path to protect the fairways, and the director said yes.
“So you have signs to protect the fairways but no signs to protect children?” Schafer asked him at trial.
The director testified that the main reason for not putting up warning signs or other safety equipment was money.
When Schafer asked how much it would cost to erect a warning sign, he answered “$50,” and for a rope and life preserver, “$20.”
“For $70 they could have prevented this accident,” said Schafer, whose firm name Schafer & Schafer refers not to his sons, but to himself and his brother, Francis, another lawyer in the family.
A dam safety expert and the chief of dam safety for Illinois testified for the plaintiffs that the national safety standard is to put up a warning sign, erect a barrier and attach safety devices, such as a rope for someone to grab onto or a buoy that a rescuer could throw to a drowning victim.
The jury also heard that to this day, the condo association has not taken any of the three precautions to prevent another accident, Schafer said.
But the witness who “buried” the defendant, according to Schafer, was a diver who contradicted the defense’s argument that the overflow crib was not even operating that day.
The diver, a member of the rescue crew, ultimately saved Christopher, the first boy who fell into the water.
He testified that he was “absolutely” certain that the overflow crib was working that day.
When asked why he was so sure, he said he heard the equipment when he was in the water and that the sound of the equipment was magnified while he was underwater.
The boys’ father testified that he went to work at 7 a.m. leaving his wife and kids in bed, and came home three hours later to find one of his children dead and another in a
coma.
The jury assigned 100 percent fault to the condo association, awarding all compensatory damages: $25.5 million for James’ brain injuries, $5 million for Andrew’s death, and $200,000 for Christopher’s psychological trauma in seeing his twin drown.
Schafer did not seek punitive damages because of state rules that require a higher burden of proof, cap punitives at three times compensatories and send three-quarters of a punitives recovery to a state victims’ fund.
The jury’s $30 million verdict is well over the condo association’s insurance policy limit of $6 million, which the plaintiffs offered in settlement.
According to Schafer, the insurer, CNA, offered $750,000 before trial. During trial, it offered to strike a high-low agreement with a low of $1 million and a high of $6 million.
“I told them to shove that offer,” said Schafer.
Schafer said he will collect from either the insurer or the condo association, and if necessary the association can assign him its rights to sue the insurer for an excess verdict, which in Indiana requires only a showing of negligent failure to settle rather than bad faith.
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