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By Spencer Brewer
Law360 (August 13, 2024, 10:31 PM EDT) — A Texas jury awarded a woman and her two children $51 million after they suffered from carbon monoxide poisoning in their apartment in 2015, finding in a Tuesday verdict that their apartment complex was responsible for the leak that allegedly left the children with serious brain injuries.
The suit began in 2017, when TiCourtney McMullen sued Red Bird Trails Apartments and several associated companies, claiming that their negligence caused carbon monoxide to seep in her apartment. McMullen sued on behalf of herself and her two children who, she says, were with her in the apartment when the incident occurred.
The jury agreed with McMullen, finding that the incident happened because Red Bird Trails Apartments and a related company were negligent, according to the jury form. The jury also found that Urban Custom Plumbing, which had performed plumbing services on the boiler, bore some responsibility for the leak.
The jury assigned 90% of the responsibility to Red Bird Trails and a related company, with Urban Custom accounting for the rest. The bulk of the award, $30 million, will go to paying for medical expenses for the two children. The jury awarded $9 million in exemplary damages, finding Red Bird acted with gross negligence.
The complex’s management knew about rust and corrosion on a boiler’s vent pipe well before a carbon monoxide leak left the two children with debilitating conditions, Richard Mann of Ted B. Lyon & Associates PC said during closing arguments Aug. 8. Mann, who represents the plaintiffs, said the children and their mother were potentially exposed to 1,000 times a safe carbon monoxide dose for humans.
Because the apartment’s management and its owners ignored obvious signs that the boiler’s vent pipe might rust through, the children suffered severe brain injuries, he said, and can only speak a few words at a time. He added that both children have had a sharp reduction in life expectancy because of the complex’s negligence, and both will require someone to supervise them for the rest of their lives.
Reports from doctors and testimony from people who know the children, including their teachers, conclude that they suffered brain injuries from carbon monoxide, he said.
The apartment complex, meanwhile, contended that while there was rust on the vent pipe that eventually broke apart, the rust was never an issue. “This is superficial, cosmetic rust,” Brent D. Anderson of Taylor Anderson LLP, who represents Red Bird Trails and the associated defendants, said during closing arguments. While the exterior of the vent pipe had rust, there’s no evidence that the actual structure of the pipe rusted through, he stated.
While the children were exposed to carbon monoxide, the plaintiffs provided no brain imaging that might show an injury, Anderson claimed, adding that the children suffer from “selective mutism,” which he said is not caused by physical brain damage. Additionally, he noted, no treating doctor has ever diagnosed them with a brain injury due to carbon monoxide poisoning.
While Red Bird Trails tried to claim that the plumber lifted the boiler up, causing the vent’s separation, the jury didn’t seem to agree with those arguments, Brian Engel of Barrett Daffin Frappier Turner & Engel LLP, who represents Urban Fire Protection Inc., said in a Tuesday interview with Law360. Red Bird Trails claimed Urban Fire was an alter ego to Urban Custom Plumbing, but the jury didn’t agree with that argument either.
“It was an important case because it signals to apartment owners that they shouldn’t tie the hands of their professionals with limited contracts, and that they should have a robust preventive maintenance program when they’re talking about machinery that can be dangerous,” he said.
Representatives for the other parties didn’t immediately respond to a request for comment.
McMullen is represented by Marquette Wolf, Richard Mann and Ted B. Lyon Jr. of Ted B. Lyon & Associates PC.
Red Bird Trails is represented by Brent D. Anderson and Jazmine Pelayo of Taylor Anderson LLP, and Jessica Z. Barger, E. Marie Jamison and Michael Adams-Hurta of Wright Close & Barger LLP.
Urban Fire is represented by Brian Engel of Barrett Daffin Frappier Turner & Engel LLP.
The case is TiCourtney McMullen v. Red Bird Trails Apartments et al., case number CC-17-00945-A, in the County Court-At-Law No. 1 of Dallas County, Texas.
–Additional reporting by Catherine Marfin. Editing by Kristen Becker.
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