Woman awarded $750,000 in collapsed deck lawsuit

Jennifer McBride / Leader Staff

How much money is your right arm worth? That was the question a jury pondered Friday after Ronni Boyce's lawyers accused Diamond Horseshoe Incorporated (DHI) and Bert Schultz, owner of DHI's property, of failing to exercise ordinary care over the maintenance of their establishment.

After a three-day trial and several hours of deliberation, the 10-woman, two-man jury found Schultz guilty of negligence and fined him $750,000. DHI was found negligent but the majority of the jury decided that its negligence had not caused Boyce's injury.

During Hoopfest 2004, in what Polson City Council Member Mark MacDonald called "a nightmare," the deck attached to the east side of Diamond Horseshoe Lounge collapsed. Boyce was standing along with 100 to 150 other people on the deck when it fell several feet. About 80 people needed to be treated for injuries, requiring 12 ambulances. Boyce was one of four people taken by helicopter to Kalispell and Missoula.

Boyce went to Missoula and was treated for a broken pelvis, a lower back injury and a dislocated and broken elbow. Boyce came away with some of the worst injuries in the incident.

"It's a miracle no one has died in the accident," one of the nurses at St. Joseph's told the Leader at the time of the collapse.

Boyce's lawyers brought in pieces of the deck as exhibits in their suit against Schultz and DHI.

Poor construction

Paul Bishop, the architect hired by the city of Polson to evaluate the cause of the collapse, blamed shoddy construction which failed to prevent dry rot from weakening the deck. The deck was built in 1990 by a now-defunct company and included a number of problems, which one of the plaintiff's attorneys, Doug Wold, called "red flags popping up like daisies in the field."

Wold said the construction used too few screws to attach the deck to the building, using 12 when 30 would have been needed; putting those screws in a straight line instead of staggering them, causing a crack along a single grain; hammering the screws in with no pre-drilled holes, causing excess stress on the building; attaching the deck to the siding and not the wall itself, leaving space for dry rot; not adequately weatherproofing the top of the wood; and using too small joists, which meant there wasn't a way to distribute force evenly.

The foundation also had problems. The plaintiff accused it of being cracked and sinking, and Jette Lake resident Chris Cannon, a witness, said he had told DHI manager Mark Fouty of a noticeable slant in the deck, which Wold said was a 3 and 1/4 inch slope. Fouty said he did not recall any conversations and Schultz's attorney pointed out that the wait staff hadn't had problems with the slope, despite carrying trays.

Instead of fixing the foundation, wooden shims had been put under the deck to stop the sinking. Though Schultz's lawyer, Robert Sheridan, said there was no proof that Schultz put in the shims, the plaintiffs saw it as proof that Schultz had known the deck had problems.

Schultz's lawyers charged that while an architect like Bishop might have realized there were serious construction problems with the deck, Schultz was an ordinary person. Montana law requires an "ordinary, prudent person" to exercise "reasonable care." Because the dry rot wasn't visible and most of the problems wouldn't have been discovered unless Schultz had happened to take apart the entire deck, Schultz's lawyer argued that his client had been within the law.

"If you had someone come in and build your deck, would you know if someone was building it to industry standards?" Sheridan asked in his closing statement.

Medical treatment

The fall from the deck left Boyce in a body sling that seriously hampered her movement until her pelvis and her back healed. According to her doctor, Stephen Powell, the Missoula hand orthopedist who has been working with her since she was flown to St. Patrick's emergency room, the shattered bone around Boyce's elbow was unsalvageable. The ulna, or arm bone on the pinkie side of her arm, is now 1/4 of an inch shorter than her other arm bone, creating an imbalance that required an implant. The implant, shaped roughly like a small, metal golf tee, slipped once around her arm, necessitating more elbow treatment. Since the accident, Boyce has lost about 45 degrees of elbow motion.

The scarring around the implant will cause severe arthritis in the future, and Powell said the elbow will probably need to be replaced with a mechanical one in the future. With the best technology available at the moment, people with elbow implants are advised that they should only lift two pounds at maximum.

In his closing statement, Boyce's second lawyer, Clifford Blackman, called the injury "life-shattering," especially since Boyce was active in snowmobiling, Taekwando, swimming, hunting and snowboarding. It was especially hard on her, Blackman said, because Boyce was a single mother.

Because of the trauma, Blackman asked the jury to give Boyce $4 million for pain and suffering, as well as paying about $75,000 in medical expenses.

"Her future goes from painful to bleak," Blackman said, comparing the value of an arm to a Monet or Picasso, which normally can sell for $60 million. "Our hands and our arms make us human, different from the animals. About half our brains are devoted to our arm…What could be more precious than the use of your good right arm?"

The defense reminded the jury that, while Boyce's injuries had been serious, she did manage to make it through nursing school. She had not, according to Powell's records, been taking pain killers at their last meeting — which took place about two weeks before the trial took place.

Despite the heady subject matter, Powell brought moments of levity to his testimony. When Blackman asked Powell to confirm that they were paying him for his trip and his time, Powell said, "I hope so!"

Closing arguments

In the end, Judge Christopher gave the jury over two dozen different instructions, including reminding them that forseeability is required for a person or corporation to be convicted of negligence.

"In the absence of forseeability, there is no duty, and in the absence of duty, there is no negligence," Judge Christopher read.

Forseeability was the main theme of the defense, which argued that the deck collapse was tragic, but not predictable.

"You heard the testimony that no one could have seen it from looking below, no one could have seen it from somewhere above," Mike Milodragovich, DHI's lawyer, said. "There is nothing to indicate anybody in this courtroom was aware of that dry rot."

In contrast, the plaintiff argued the situation was both foreseeable and preventable.

"[Schultz] chose to use a poor builder, he chose to use cheap parts, he chose to accept poor work," Wold said. "You can't just build it and look away from it…The ordinary, reasonable man would take his head out of his pocketbook and look around and try to make things safe."

The jury evidently agreed, giving Boyce ten times the amount they were asking for her medical bills, if not the $4 million total that they were requesting.