February 25, 2011
Indiana Jury awards nearly $31 million to family involved in 2001 drowning
CROWN POINT | A Lake Circuit Court jury awarded nearly $31 million to the family of three boys who fell through the ice at Lake Holiday at Lakes of the Four Seasons nearly 10 years ago.
Andrew Kennedy, 11, died while his younger brother James, then 10, was left permanently brain-damaged.
Andrew’s twin brother, Christopher, fell through the ice first, prompting his brothers’ efforts to help. He survived.
The boys walked onto the ice the morning of March 11, 2001. The family filed the suit in March 2003 against the Lakes of the Four Seasons Property Owners Association.
Friday’s jury verdict may be a record, according to the family’s attorney, Timothy Schafer of Schafer & Schafer in Merrillville.
“I know of no other such award in the county,” Schafer said. “The importance of this is that James will be protected and get the care he needs.”
James has the capacity of a third- or fourth-grader and requires daily care, according to trial testimony.
Opposing attorney Daniel Glavin could not be reached for immediate comment after the verdict, but Schafer said Galvin was hired by the company insuring the LOFS Property Owners Association.
The insurance company will be responsible for the entire amount — not the POA — because the insurer opted to forgo a settlement offer in which the family would have accepted the policy’s cap of $6 million, Schafer said.
At issue was the role of an overflow crib in the lake that maintains the level of the lake.
Excess lake water flows into the crib where a pipe drains the water into a creek on the other side of an earthen dam.
The boys, who had tested the ice by throwing rocks into the lake before walking on the ice, fell into the ice some 30 feet from the crib, where water was flowing under the ice but could not be seen, Schafer said.
During closing remarks Friday, Schafer told jurors, “This is a case about the safety of children.”
Schafer charged LOFS with failing to post a warning about potential danger, failing to restrict access and failing to provide safety equipment.
The tragedy could have been prevented by the $70 cost of a warning sign and a rope pulley with which the boys may have been able to save themselves, he said.
Schafer told jurors the community violated dam safety protocol in use for 50 years in the U.S. and Canada.
Ten years later, no warning, restrictions or safety equipment marks the location where the overflow crib may compromise safety, he said.
Glavin argued the circulating water did not play a role in compromising the integrity of the ice. The boys fell in because of changing temperatures to the ice, he said.
Glavin told jurors the tragedy had nothing to do with the crib.
“Ice is dangerous no matter where it is,” Glavin said.
Ice is unpredictable and inconsistent, he said.
Glavin argued there was no reason for the POA to know of a potential problem since neither the LOFS Fire Department nor the DNR had been called to the area in at least 25 years.
“Nobody ever had a problem in that area before,” he said.