Commonwealth Journal

October 16, 2013

Trial over death at Colonial Village begins next week

by Heather Tomlinson
Commonwealth Journal

Somerset — A lawsuit stemming from a Pulaski teen and her unborn child’s tragic 2009 deaths will go to trial next week in Pulaski Circuit Court.

After more than three years of legal wrangling between the families of Kaitlyn Griffin, 17, and Nicholas Ayden Steele, and the Somerset Housing Authority, the case centered around a large tree that fell and killed Griffin and Steele, her unborn son, at Colonial Village — and whether the tree was perceived as unstable before it fell  — will go before a jury on Monday, Oct. 21.

Griffin was around six and a half months pregnant with Steele when she was struck on Dec. 9, 2009 by the large red maple tree at Colonial Village in Somerset while unloading a car with her cousin, Joshua Thacker, who is also named in the case. The large tree, approximately 39-inches in diameter, left Griffin with severe head injuries and Thacker with a shoulder injury and minor head injury.

Rhonda Kay Griffin and Derel Griffin, Kaitlyn Griffin’s parents, and Jason Steele, the father of Nicholas Ayden Steele, along with Robin Mullins, Thacker’s mother, are suing the Kentucky Housing Authority, which owns and maintains Colonial Village, along with housing authority executive director Wendi Conley and manager Melody Phelps.

The plaintiffs claim that Conley and Phelps were negligent in their duties in “allowing an obviously dead and dangerous tree limb to remain suspended over the heads of the unsuspecting public ... thereby presenting an imminent, grave and highly foreseeable threat of serious injury or death to non-negligent persons ... who might walk underneath or near said limb during windy or otherwise inclement weather,” according to the original complaint, filed in Pulaski Circuit Court on Nov. 18, 2010.

Griffin was pronounced dead at Lake Cumberland Regional Hospital not long after the tree fell. Steele was delivered via Cesarean section by doctors, and despite efforts to save him, he was pronounced dead around an hour after his mother was pronounced dead.

“Nicholas, 26 weeks old and viable, died despite extensive efforts to save him,” states a memorandum filed by Griffin and Steele’s families. “Two treating doctors involved have opined that he could have lived if not for the injuries inflicted upon him and his mother by the falling tree.”

Dr. Dale Rutledge and Dr. Dana L. Gibson, who treated Nicholas Steele on Dec. 9, 2009, have both filed affidavits in the case stating Steele was several days older than 26 weeks, considered generally in the medical community to be the minimum gestational age for viability. In other words, doctors usually agree that a 26-week-old fetus can survive outside the womb, with medical aid, and eventually live normally.

The tree was felled in gusty wind conditions, and evidence of the weather conditions that day presented by the Housing Authority suggests the “non-thunderstorm wind event” featured wind gusts up to around 48 mph. But Kaitlyn Griffin and Nicholas Steele’s families claim gusts only reached around 30 to 40 mph.

“ ... Such strong winds are not uncommon,” states the trial memorandum for the plaintiffs. “A healthy tree would likely have withstood such winds and ... if a mature tree cannot survive such winds it ought to be immediately removed or mitigated against before it has an opportunity to harm or threaten anyone or any property.”

Arborist Ian K. Hoffman, through a May 10, 2013 letter written to local attorney Jane Venters, who is representing some of the plaintiffs, said the red maple had “co-dominant trunks,” which means it featured two similarly-sized stems that grew out of the same main trunk.

“Co-dominant stems tend to fail much more often than others,” Hoffman stated in the letter.

Those two stems formed a weak convergent point, which is where the break happened on Dec. 9, 2009.

Although Hoffman said the tree was obviously a danger, and maintenance workers for the Housing Authority said no fewer than 10 trees were removed after Kaitlyn Griffin and Nicholas Steele’s deaths, the Housing Authority claims that inspections by experts “revealed no disease or condition which would have put any individual on notice of the likelihood that the tree would fall,” according to the defendants’ trial memorandum.

The memorandum also states that local UK Extension Horticulture Agent Beth Wilson attested that “the tree was indeed alive at the time of the failure. The tree was also free from extensive internal rot and therefore would not be considered a hazard tree ...”

At the center of the case is whether the Housing Authority had been warned about the state of the red maple before Kaitlyn Griffin and Nicholas Steele’s deaths. The defendants are claiming that they “had no notice of any defect, illness or condition exhibited by the tree,” according to the trial memorandum.

But the plaintiffs claim that the Housing Authority had “been warned repeatedly” about the tree, and affidavits are expected to be introduced from several people who knew of the tree’s instability, including a resident of Colonial Village who supposedly told managers that falling limbs had been a  danger with the tree.

Kaitlyn Griffin and Nicholas Steele’s families and Thacker are seeking anywhere between a little over $1.8 million and $2.5 million for Kaitlyn Griffin’s death and a little over $1.8 million for Nicholas Steele’s death. Those totals were provided through an economic consultant retained by the plaintiffs.