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$1.86M awarded in death of senior

FOR THE RECORD: This story contained an error about the number of clients who used walkers. The quote should have said, “Every single customer for the salon was elderly and 30 percent used walkers.”

Gene Marie Gann’s regular outing from her apartment at Albuquerque’s Paloma Landing to the beauty parlor at Three Fountains Casa Ltd. senior living community was a highlight of the 86-year-old’s week.

But one day in February 2010, the hairdresser wasn’t there to greet Gene at the top of the stairs. Gann proceeded up the four steps by herself, with her walker, while her 96-year-old companion waited.

Gann reached the landing – the railing stopped a full foot before it – and lost her balance. She teetered and fell backwards, her head smacking the floor with a sound “like an egg cracking,” as her friend told a jury.

Gann died four days later.

This month, a jury awarded Gann’s estate $1.86 million, finding Gann 18 percent at fault, and Jamboree Management and Three Fountains liable for the rest.

Feliz Rael, co-counsel with Chris Supik at trial for the family, said jurors told them afterward that the number was specifically chosen to represent Gene Gann’s age, and that “essentially a person doesn’t become disposable at 86.”

She said that although the case was not filed under the Americans with Disabilities Act, the case was “all about ADA,” and alleged negligence by the building owner and management company, and jury instructions referred to ADA statutes.

“This wasn’t just a college dorm,” Supik said. “Every single customer for the salon was elderly and 30 percent used walkers.”

Rael and Supik said they hope the verdict serves as a wake-up call for building owners.

“I think there are tons of businesses that are out of compliance,” Rael said.

The defense took the position that the only negligence was on the part of Gann or the beauty shop owner, who was not a defendant in the lawsuit.

“Both my client and I were disappointed in the jury verdict as there was little or no evidence to support the amount of damages awarded,” said Santa Fe attorney Michael Brennan, who defended Jamboree Management and Three Fountains.

“While no final decision has been made, I strongly suspect that both post-trial motions and an appeal will be filed,” he said in an email.

2nd Judicial District Judge Alan Malott entered judgment on Monday to Debbie Kraus, Gann’s daughter and representative of the estate, for $1.525 million, representing $47,000 for medical expenses, $153,000 for pain and suffering, and $1.6 million for the lost value of life. The total was reduced by the 18 percent that the jury found Gene to be at fault.

Rael said in an interview that the owner/manager of Three Fountains could have easily made modifications to accommodate the seniors who frequented the building.

In one court pleading, Rael and Supik argued that, despite the defense position that the building owners were not negligent, they failed to meet the obligation to exercise ordinary care for the safety of customers. Under the ADA, railings must reach and wrap around the top.

“The point of ADA is not just access,” she told the jury, “or treacherous access, but safe access.”

The ADA sets out factors to be considered in deciding if removal of architectural barriers is readily achievable, among them the financial resources of the facility involved, Rael and Supik argued.

The building manager, who also manages over 60 other properties from a California base, testified by deposition at the trial – a prior sworn statement read aloud into the record – that the property was in compliance at the time he took it over and that no ADA survey had ever been done.

“I believe that due to the age of the building, we’re grandfathered,” Fred Sparks said in the deposition testimony about the building, which dates to 1971.

Asked by Rael why he believed that, Sparks replied, “Well, there are things that just aren’t practical to do on a building this old, and to my knowledge, you’re not required to do them. Do I know the American Disability Act as well as I should? Absolutely not.”

He said he had not made any changes to the building either as a result of lawsuits or to make it safer.