Posted by Gary Burger on December 22, 2015 in Personal Injury
On May 27, 2013, Michael Macharia and his wife Mary were on their apartment deck when it collapsed. The second floor deck detached when the short nails affixing the deck to the wall failed, causing the deck to collapse, dropping Mary and Michael onto the concrete patio below. Evidence against all three defendants was incredibly damning – showing gross neglect, inconsistent stories and self-serving lies. The day after this deck collapse, St. Louis County inspected the complex and found at least 50 decks that were out of code by being nailed, not bolted, to building walls.
Gary represented the Macharias and settled the case for $1.435 million against three parties after extensive litigation, a mediation and further negotiation. Michael fractured his left ankle and Mary sustained a non-displaced fracture to a vertebrae. Michael had two surgeries to repair his ankle, and Mary received physical therapy and pain medication. The value of Mary and Michael’s combined paid medical expenses were only $56,696.98. Mary’s past billed medical expenses totaled $69,450.00. Mary also was working at the time of this incident and has not since. Her wage loss damages are $50,000 to date. Due to Mary’s injured vertebrae, she may require a $200,000 surgery, which is equal to the amount of wage loss she will incur if the surgery is never performed. Michael’s past billed medical expenses are $68,672.00, and his wage loss damages are $19,543.00.
The Macharias rented their condo from owners Mary Burns and Steve Speno, and as far back as January of 2013 communicated their concerns about the deck’s safety. The owner came out to the deck, jumped on it and told Mary it was safe. The owners reassured Mary and Michael the deck was safe three more times. The owner delayed repair work and promised to repair it the day after the collapse.
The apartment was located within Sandalwood Creek Condominiums. The condominium association had the authority to inspect and repair decks and did so extensively. Bill Voss, president of the association for 20 years, owned over 50 units at the condo complex, rented them out to tenants, and profited heavily from renting his condos. He testified that even 20 years ago, the decks were “in incredibly bad shape” but the ‘association didn’t repair or maintain any of the townhome decks.” In 1998, Voss and other managers agreed that all the decks would need to be completely replaced in 2-5 years. After the collapse, Voss said he was “appalled that they were nailed in with 16 penny nails,” – but the records show the association knew long before the deck collapsed. When Gary deposed Bill Voss, he finally decided to place a requirement that townhome decks be bolted to the walls on the association’s agenda (literally during the deposition).
Voss directed the maintenance, repair and replacement of decks and would regularly inspect the property. He established a distinction between condo types – “garden” and “townhome” units. He set up a fund to repair, maintain, and replace garden units, but neglected townhome units (where the Macharias lived). The Association took the position that they would repair garden unit decks but not the townhome decks, but they actually did repair and maintain some townhome decks, never communicated this alleged distinction to owners, and could identify no by-laws that laid out this distinction.
The Association used Smith Management Company to perform the actual deck maintenance. Smith inspected decks and repaired and replaced them. In litigation, Smith Management also claimed that they were not responsible for the townhome decks. However through extensive discovery and the production of thousands of pages of documents, we identified many times where they inspected and repaired townhome decks. In fact, they assessed townhome deck owners to maintain decks and inspected them.
Gary’s litigation found that Smith Management performed about 150 deck repairs or replacements in the 10 years prior to the deck collapse that injured the Macharias. The evidence showed that they inspected the garden decks numerous times and made deck repair lists. Some decks were so rotten they had to be entirely replaced. However, and incredibly, they had no comprehensive deck inspection or maintenance program and completely ignored “townhome” decks. Further, when Smith did replace these decks, they bolted the decks to the building wall with carriage bolts, which was required by building codes as far back as 1997. Had the Macharias’ deck been bolted, it would have not collapsed.
The day after the deck collapsed, the association and Smith Management sent a letter to the Sandalwood residents and issued a press release claiming that pursuant to “indentures the decks on the townhomes were the responsibility of the homeowner to maintain and repair.” But Lanya Massman, CEO of Smith Management, admitted that that sentence was not true in three different ways. They hired a media relations company and crafted messages to blame the homeowner which was not true – presenting lies to Leisa Zigman of KSDK, Fox News, and any other news outlet who was reporting the deck collapse. In fact, Smith had done some maintenance to the townhome decks, albeit cosmetic.
The declarations of the association imposed the “the responsibility to make sure all the decks were safe and up to code” on the association – not the owners. Bill Voss later attempted to send a letter saying so but Smith Management prevented it, stating “the board is all but admitting that they were negligent in inspecting these decks. I can easily see this letter being used as evidence against the association and Smith Management.” Smith Management and the association put as much effort into inspecting and maintaining the Macharias’ deck as they put into shifting the blame to the homeowners after the incident, then the Macharias’ deck would never have collapsed.
After the deck collapse, the association insisted that if the townhome decks were not repaired to cure the St. Louis County Code violations, the repairs would be done by Smith Management and the owners would be charged. But this could and should have been done before the collapse, and contradicts Smith’s and the association’s position that the owners were responsible and they could not perform these repairs.