In the past couple of years there has been an increase in the number of reports of people falling from apartment balconies. Young adults and drinking seem to be two characteristics in most of these cases. The two are not necessarily in every case. Young children also fall, but mostly out windows. In the case discussed in this Iowa Supreme Court decision tragedy struck Shannon Potts who fell over a balcony rail and died. [At this stage of the litigation it might be time for all parties to sit down and to talk settlement.]
Property Defects Can Have Devastating Consequences
We have focused on serious injuries or deaths caused by property defects because of the nature of our practice. Injuries from defects include paraplegia, quadriplegia, disc rupture, injuries requiring surgery, broken legs and arms not to mention brain damage (TBI, head injuries) and loss of life. We’ve seen more than our share of clients with serious injuries or death claims and so we focus on the legal aspects following a serious injury or death resulting from property defects. Don’t blame us for focusing on this aspect of life, it’s our job.* And without us doing this work, which I consider our life calling, the insurance industry would run roughshod over every victim of an accident. We always have to keep in mind the adjusters’ jobs are to keep payouts low so their companies increase profits. Your claim makes that more difficult to achieve and so they minimize your problems to reduce the value of your claim.
Anyway, this new Iowa case discusses the legal concept of negligence per se involving the Des Moines Municipal Code’s requirement for balcony rails to be forty-two inches tall and the jury instructions you can anticipate receiving when someone falls over a rail that is less than 42 inches. The handrail in question was ten inches shorter than the City of Des Moines required on apartment balconies. Lay people will probably not find this case very interesting, but lawyers need to read it.
Municipal laws and premise liability jury instructions
June 24, 2016 - No. 14–0199 KATHRYN WINGER and TIMOTHY POTTS v. CM HOLDINGS, L.L.C
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.
Plaintiffs and defendant seek further review of court of appeals decision ordering a new trial in a wrongful-death action arising from a fatal fall from an apartment balcony. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT ORDER AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED FOR NEW TRIAL.
Quoting from the case.
Estes admitted the guardrail height was a health and safety issue but reminded the board that the guardrails had been at that height for forty-five years without an accident. The board granted CM Holdings until October 7 to fix the violation. Neither the board nor CM Holdings raised the issue of whether the existing guardrails were grandfathered under the housing code. The HAB issued a notice of its decision on July 20, stating, the above referenced property has been found to be in violation of the Municipal Code of the City of Des Moines, Iowa. The property was not brought into compliance as ordered by the Notice of Violation issued by the Neighborhood Inspection Division. The case was referred to the Housing Appeals Board (HAB) and the Board ordered the following: The HAB granted an extension until 10-07-2011 to complete the repairs and suspended the $1,090.00 fine. However, the board also made a part of that motion that if repairs are not completed by the same date, this case will be referred to the Legal Department for prosecution. . . . Shannon Potts fell over the balcony rail to her death three days later.
* Being interested in real estate Attorney Lombardi studied for and became licensed as a real estate broker. As of this writing he continues to be a licensed broker and lawyer.
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