Wrongful death suits filed in fire deaths

8/2/2012

Landlords failed to provide smoke detector, safe rental house, lawsuits claim.

Landlords failed to provide smoke detector, safe rental house, lawsuits claim.

BY ANGIE HAFLICH

ahaflich@gctelegram.com

A pair of wrongful death lawsuits have been filed against a Wichita home health agency and two Scott City residents in connection with a March 10 house fire in Scott City that killed a woman and three children.

The lawsuits were filed Wednesday in Sedgwick County District Court in Wichita by attorney Stephen Torline. One lawsuit was filed on behalf of Jeff Murphy and his ex-wife, Brenda Murphy. The Murphys' two daughters, 8-year-old Terra Murphy and 6-year-old Cassie Murphy, were killed in the fire.

The other lawsuit was filed in the deaths of the other two victims in the fire, 28-year-old Jackie Coberly, who was renting the home, and her 4-year-old son, Brandon Carter. That lawsuit was filed on behalf of Jason Hundertmark, who is the administrator of the estates of Coberly and Carter and is the father and guardian of Coberly's other son, Justin Hundertmark.

Both lawsuits name James and Linda Noll of Scott City, who owned the home, and Wichita agency Windsor Place At-Home, which the lawsuit claims was contracted to provide in-home care for Coberly, who was a wheelchair-bound quadriplegic.

Both suits claim the Nolls, as landlords, failed to provide a safe rental house and failed to provide a smoke detector in the rental home, as required by law.

The Murphys were unavailable for comment, but Torline said that one of the things they are hoping to accomplish through the lawsuit is to create public awareness about smoke detectors.

"But specifically, there is a statute in Kansas that requires all property owners, including landlords, to provide a working smoke detector. ... But the statute also says a violation of the statute cannot be used as a basis for civil liability, so it really has no teeth to it," Torline said.

The state statute regarding smoke detectors, KSA statute 31-162 and 31-163, also states, in part, that "failure to place or maintain a smoke detector as provided by the smoke detector act shall be a nonclass nonperson misdemeanor. Any fine imposed for a violation of this section shall not exceed $25."

"So one of the things we're trying to accomplish is to create some groundswell, if you will, to get that law in the books, make it mean something, so that when a landlord takes the rent from a young family like this, that before he rents the property, he thinks twice and makes sure that there is a functioning smoke detector in the house," Torline said.

Linda Noll said that there was a smoke detector in the house, located at 1105 Church St., when Coberly moved in.

"All I can say is it was a horrible — it was obviously a horrible tragedy," Noll said. "But when Jackie moved in, there was a smoke detector."

Noll said that the smoke detector was working properly when Coberly moved in about two years ago, but she added that neither she nor James Noll had been to the house since Coberly moved in.

"They prefer us not to," she said, referring to tenants.

According to both lawsuits, "The Nolls breached their duty to keep the house in repair by failing to exercise reasonable care in at least the following respects: failing to equip the house with functioning smoke detectors/alarms; failing to maintain and/or repair the house's electrical system in a safe and working condition; failing to maintain the house's windows in safe and working conditions; and failing to maintain the house in a safe condition for a quadriplegic and three young children."

The lawsuit claims the disrepair of the house and the lack of a smoke detector was the "direct and proximate cause" of death for each victim.

The lawsuit also claims Windsor Place At-Home failed in its contractual obligation to provide care for Coberly at the time of the fire.

The suit claims that Coberly's service provider, Consuelo M. Rivero, was not present in the house at the time of the fire. The suit goes on to claim that as a result of Windsor's failure to provide service at the time of the fire, Coberly was alone with her son and the two girls, and because of her disability, wasn't able to get the children or herself out of the burning home.

Torline said he didn't know much about Windsor Place At-Home, a limited liability corporation based in Coffeyville that has a registered business address in Wichita, but that Coberly required 24-hour care, and that at the time of the fire, there was no caregiver at the residence.

"We do know that they contracted with the state. They were being paid by taxpayer money to provide care for this woman, 24-7," Torline said. "Jackie, the young mother who died, was a quadriplegic but ... she was able to live by herself. She didn't need to be in a nursing home, but she was dependent upon a care provider to give her care, 24-7. That's what they were paid to do."

Monte Coffman, executive director of Windsor Place, said that the agency was shocked by the lawsuit.

"We're all terribly saddened, and we were when we got the news in March, and the loss of the life of a young mother and then the three children in the house," he said.

He said that in Coberly's case, the providers of her care at the time of the fire were not employees of Windsor Place. He added that people in the Medicaid Home and Community Based Program, which is a state program that pays for home health care, have two choices when determining their care: to choose an agency, such as Windsor, to send workers in to care for them, and the other is to self-direct their care. He said that Coberly opted for the latter.

"Because she chose to self-direct her care, she would then recruit and select and hire her own caregivers. Many times, those are friends, neighbors or they are relatives, but it is people that she knows and trusts and is comfortable with and then she, as the self-directing consumer ... she schedules them and decides when she wants them here, she manages them, she tells them what she wants done, what her needs are, so they report to her as the managing employer," Coffman said. "But what Jackie selected our organization to do is come alongside her and do administrative support."

He said that the administrative support included processing payroll, accessing her Medicaid billings, and handling tax filings, among other administrative tasks.

"That's what she chose us to do, but as a self-directed consumer, she selected, hired, managed, scheduled the workers," Coffman said.

On Wednesday afternoon, Coffman said that he was in the process of getting a copy of the lawsuit.

"I don't have the complaint in front of me, so responding to the specifics, I'm not in a position to do that," he said.

The lawsuits were filed in Wichita because Windsor Place's registered business address is in Wichita and because two of the deaths occurred in Sedgwick County, after two of the victims were flown there for treatment.

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