Phila. judge certifies class action stemming from '01 apartment complex fire

By Jon Campisi | Mar 4, 2013

A state judge recently certified a class action lawsuit stemming from a fire

at a West Philadelphia apartment complex two years ago that forced the evacuation of its residents.

In a Feb. 6 order, Philadelphia Common Pleas Court Judge Mary Colins granted the plaintiffs’ motion for class certification in the case against Windermere Court Apartments.

The lead plaintiffs, Theodore Schall and John Brendan Farley, filed suit on behalf of themselves and others similarly situated back in late May 2011, alleging the plaintiffs suffered property damage or loss as a result of a catastrophic fire that took place at the four-story building on Jan. 10, 2011.

The complaint alleges that the building’s fire detection and alarm system didn’t sound when the fire first broke out in a second-floor apartment.

The blaze eventually spread throughout the building and required the response of about 140 firefighters, court papers state.

In addition to property that was damaged by fire, smoke and water, the units that remained in the wreckage in the aftermath of the fire were eventually destroyed when the building had to be razed, the complaint states.

In all, between 100 and 200 tenants were affected by the fire and its aftermath.

The lawsuit alleges that during the first few days after the fire, former residents were not allowed to salvage their property from the site and that the defendants did not themselves salvage the property and preserve it for the tenants.

Only after repeated demands did the defendants permit the tenants to salvage what few belongings they could fit inside a trash bag, the suit claims.

The vast majority of the property remained in the wreckage after the fire and was destroyed when the building was ultimately razed, according to the complaint.

The plaintiffs sought class certification to include all those affected by the fire.

In her order, Colins wrote that there were indeed questions of law or fact common to the class that warranted class certification.

“The court finds that the questions of negligence (the conduct of Windermere personnel, adequacy of smoke and fire detection, and alarm and sprinkler systems) are common to the class and that proof on these issues as to one is proof as to all,” Colins wrote.

The certified class includes only residents and guests of the building who claim losses due to the fire.

“The questions are simple: did the Windermere fail properly to instruct personnel regarding fire protocol; was its fire detection and alarm system inadequate; should it have had a sprinkler system?” the order states. “The answers to these questions are common to all class members and susceptible of a jury determination.”

Colins conceded that a fire is a “complex thing and has complex consequences,” and the defendants are correct in their assertion that certain variables will affect determinations on damages, such as whether residents had insurance, and whether the property was damaged by smoke, fire, water, or theft, but the underlying question of general negligence remains the same for all.

“Questions of negligence, causation and damages are sometimes blurred and inseparable,” Colins wrote. “In this case, however, all subsidiary questions flow from the single inquiry: did defendants breach a duty of care owed to their residents and lessees? Only when this question is answered can the trial proceed on the other matters.

“It is a singular benefit of class action treatment that this question be asked and answered once, thereby averting inconsistent negligence findings that otherwise would flow from individual lawsuits.”

The judge also ruled that the plaintiffs have met other burdens required for class certification, including the numerosity requirement and the “typicality” prerequisite.

Colins also wrote that in the absence of class certification separate actions on behalf of individual claimants pose a substantial risk of “inconsistent adjudications.”

“These issues are complex and require expert analysis which likely would differ in individual actions, resulting in substantive determinations on negligence that cannot be reconciled with each other,” the order states. “The court finds that the same complex issues requiring expert analysis also would likely deter separate action.”

The other defendants named in the lawsuit aside from Windermere are Keystone Management, Yisroel “David” Ginsberg, Sholom “Sam” Ginsberg and Aron Ginsberg.

The Ginsbergs were managers of the apartment complex.

Class counsel in the case is Thomas More Marrone, a lawyer with the Philadelphia law firm Greenblatt, Pierce, Engle, Funt and Flores.

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