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New lawsuits likely after O’Donnell reopening (UPDATE)

By: Jack Zemlicka, [email protected]//June 28, 2011//

New lawsuits likely after O’Donnell reopening (UPDATE)

By: Jack Zemlicka, [email protected]//June 28, 2011//

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The O'Donnell Park parking garage reopened Tuesday in Milwaukee. The structure has been closed since June 24, 2010, when a piece of the facade fell off the east side of the garage, killing a teenager on his way to Summerfest. (Staff photos by Kevin Harnack)

Lawsuits against Milwaukee and Milwaukee County loomed Tuesday as officials announced the reopening of the O’Donnell Park parking garage on Lincoln Memorial Drive.

In a small ceremony, County Executive Chris Abele declared the renovated structure safe. He lauded the work of the contractors — Madison-based KBS Construction Inc. and RAM Construction Services of Minnesota LLC, Little Canada — that completed $5.4 million in renovations about a year after a June 24, 2010, accident in which a 13 1/2-ton panel fell from the facade of the garage, killing 15-year-old Greenfield resident Jared Kellner and injuring two others.

“We wanted to do this right,” Abele said.

But removing the 27,000-pound panels and adding a new stucco finish doesn’t exempt the county or city from responsibility for the accident, said Al Foeckler, attorney for the Kellner family. Liability lawsuits against Milwaukee County and the city of Milwaukee are forthcoming this summer, said the attorney with Cannon & Dunphy SC, Brookfield.

“We will be filing a notice of claim relatively soon,” Foeckler said.

The municipalities would have 120 days to either deny or take no action on the claim.

Abele declined to comment on the pending lawsuits until something is filed in court.

Brian Leistikow, an employee of Dairyland Electric Co. Inc., Butler, wires a new sign in front of the O'Donnell Park parking structure Tuesday in Milwaukee.

“I’m not aware of that yet,” he said, “and we haven’t heard anything.”

But Jack Takerian, Milwaukee County director of public works and transportation, said the liability lies with the contractors that he said improperly installed the panels.

“I think as the attorneys get into it a little further,” Takerian said, “they will find that the panels that were installed were installed differently than originally designed.”

Attorneys for the Kellner family filed a lawsuit against the contractors Jan. 19. East Troy residents Amy and Eric Wosinski, who were injured in the accident, also filed suit against the contractors in January, according to court documents.

The contractors named in the lawsuits are Advance Cast Stone Co., Random Lake; J.H. Findorff and Son Inc., Madison; C.D. Smith Construction Inc., Fond du Lac; and Dietz Drafting and Design Inc., Burlington. Four unnamed insurance companies also were listed in the lawsuits.

“The answer to those lawsuits is to deny that Findorff is liable,” said Don Piper, attorney for the company.

All four construction companies conducted various work on the O’Donnell Park parking garage, according to the lawsuits, which were consolidated in Milwaukee County Circuit Court.

Attorneys for C.D. Smith and Dietz Drafting declined to comment on the lawsuit. Attorneys for Advance Cast Stone did not immediately return calls.

“A lot of people have looked to the county to say it was deferred maintenance,” Takerian said. “This is not deferred maintenance. This is an installation issue.”

Cannon & Dunphy in October filed against the city and the county a notice of injury, which typically is a precursor to a lawsuit.

If the county and city are named, both would have liability protection under existing law that caps damages at $50,000.

But Foeckler said he was researching methods to sidestep those limitations.

“Maybe that cap applies,” he said. “But we’re looking at different legal theories to get around that.”

Lawsuits against the county and city in a case such as the O’Donnell accident could be more a strategic move than an economic one, said Jason Abrahamson, a Milwaukee personal injury lawyer. He said he had not found a way to circumvent the municipal caps in a case unless it involved civil rights issues.

But there is value in drawing the city and county into the case because they could point fingers at the other defendants, Abraham said.

“If you have a city or county attorney saying, ‘We trusted these people to do the work, and they didn’t do what they told us,'” Abraham said, “it might be more believable for a jury than the plaintiffs’ lawyers who are asking for money.”

Abele, who was the first person to park in the renovated garage Tuesday, said the county had learned lessons about the importance of oversight during construction projects. He said he expected a higher level of due diligence on future projects.

“We want a rigorous and well done competitively bid process, which ensures that we get the best outcome for the county,” he said. “I don’t think that has always been the case.”

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