The www.MontanaStandard.com reported at http://www.mtstandard.com/articles/2004/08/25/newsstate_top/hjjfjbhejcgcee.txt
POLSON Five lawsuits have been filed so far in Lake County District Court seeking reimbursement for medical expenses and monetary damages resulting from the July 30 collapse of an outdoor deck at the Diamond Horseshoe Lounge and Grill in Polson.
The Polson Police Department also is continuing an investigation of the deck collapse. The results of that investigation will be handed over to the Polson city attorney sometime early in September for possible prosecution, Police Chief Doug Chase said Monday.
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Officials investigate the wreckage of a balcony that collapsed July 30 at Diamond Horseshoe Lounge and Grill in Polson. Five lawsuits seeking reimbursement for medical expenses and monetary damages have been filed so far. |
Chase would not speculate about what criminal charges, if any, might ultimately be filed.
Some 80 people were treated at area hospitals from injuries received in the deck collapse.
Meanwhile, an attorney for Jim Clatterbuck, who had been named by city officials as the recipient of a 1990 building permit for construction of the deck, has denied his client had anything to do with that particular deck's construction.
Polson officials have blamed the collapse on "shoddy construction.''
"The deck that collapsed was either built by (Diamond Horseshoe owner) Mr. (Bert) Shultz himself or by a contractor other than my client,'' Whitefish lawyer Judah Gersh asserted in a recent letter to the Missoulian. He said a building permit issued in 1988 to Shultz for a "building remodel and deck'' was evidence supporting this assertion.
But Polson Building Official Ron Melvin reiterated this week his conclusion that the deck was built in 1990, under the authority of building
permits issued to Jim Clatterbuck Construction. Melvin said that the 1988 building permit for a deck Gersh referred to had a completely different configuration and was planned for a different location on the building than the one that actually collapsed.
Melvin showed the Missoulian documents and architectural drawings from the city's files for both the 1988 and 1990 permits that supported his conclusion.
The architectural drawings in the file for the 1988 building permit show a three-level deck comprised of two landings, and a larger hexagonal structure between them, all connected by stairs. This deck plan extends outward from the building toward Flathead Lake.
In contrast, the drawings for the 1990 permit obtained by Clatterbuck show an exterior deck and railing adjoining and parallel to a new addition on the Diamond Horseshoe, and running parallel to the lakeshore. This is the location and configuration of the deck that collapsed, according to Melvin and other officials who have inspected the site.
The deck shown in the 1988 building permit was actually constructed, but apparently was removed sometime in the mid-1990s, people familiar with the story of the Diamond Horseshoe said.
Shultz's attorney, Matt O'Neill of Polson, said he has witnesses who will testify that the deck that collapsed was built by Clatterbuck or one of his employees or subcontractors during the 1990 expansion of the Diamond Horseshoe.
At O'Neill's suggestion, the Missoulian contacted a contemporary witness to the 1990 construction of the Diamond Horseshoe project who is not involved in litigation or the factual dispute.
Tom Orchard of Polson was the first tenant in the 1990 Diamond Bar expansion, operating Orchard's Landing Restaurant in the newly constructed addition. Orchard told the Missoulian that he recalled Clatterbuck as the general contractor who built the entire 1990 addition, including the deck that collapsed in July.
The deck was on the outside of an addition to the building constructed in 1990, so it couldn't have been the 1988 deck authorized by the Shultz building permit that collapsed, Orchard said.
A spokeswoman for Clatterbuck referred a Missoulian reporter to Gersh for comment on this factual dispute. Gersh did not return telephone calls Monday and Tuesday.
The deck collapsed shortly after midnight July 30, while some 80 to 100 people were on the structure. They fell about eight feet to a concrete slab below in a tangle of arms, legs and broken bones. Many were injured, some seriously enough to be hospitalized for several days. No fatalities resulted.
Building official Melvin and a separate report by an architect hired by the city to inspect the premises after the deck collapsed say the deck was built without the ledger board holding the deck to the wall of the building adequately protected from the weather, exposing the ledger board to dry rot.
Also, metal joist hangers holding the decking to the ledger board were installed on the lower half of the ledger board, adding stress. And lag bolts holding the ledger board to the building were installed in a straight line down the grain of the board, weakening it. It is along this line that the ledger board split, causing the collapse.
"With the dry rot that was observed on the ledger, the lack of lag bolts holding the ledger to the exterior of the structure, the settlement of the foundation, and the load imposed by the occupancy of the deck (my conclusion is) that without major repair this deck would have collapsed if not this night, but at some time,'' Melvin concluded in his report.
The five plaintiffs in the personal injury lawsuits filed so far are from Missoula, Polson, and from as far away as Scottsdale, Ariz., according to filings in the Lake County Clerk of Court's office in Polson.
One of the lawsuits claims that the collapse of the deck "is prima facie (at first examination) proof of negligence.''
No dollar amount of damages is sought or specified in any of the lawsuits. Rather the plaintiffs seek compensation for past and future medical bills, loss of earnings, loss of established course of life, and monetary awards for physical and mental pain and suffering.
The defendant in each case is Diamond Horseshoe Lounge and Grill LLC, owned by Polson businessman Shultz. Shultz's attorney O'Neill said Monday that the business has adequate insurance coverage. O'Neill has not made a formal response as yet to any of the filings.
Police Chief Chase said the investigation has not yet determined how many people were on the deck at the time of the collapse, or if any patrons under the legal drinking age of 21 were on the deck when it collapsed or in the bar illegally. He said he did not know if the deck had a legal "occupancy'' limit as did the bar and grill inside the structure.
Melvin stated in his report that building code requires that decks must be designed to the same "live load'' as the occupancy.
Extrapolating from the interior occupancy regulations to the deck, in terms of square feet required, would give the occupant load of the deck as approximately 45 occupants, Melvin said in his report to Polson Fire Chief Tom Maloney. He said this was a tentative conclusion, open to future review.
Hospital officials have confirmed that at least 80 people were treated for numerous injuries that night and morning. They have also confirmed that a number of the injured treated that night were under 21 years of age.
Chase said that under a provision of Montana's casino gambling laws, underage patrons of the establishment may have been in the place legally, if they were between the ages of 18 and 21, and had the bar owner's permission to be there.
He said some underage patrons have been interviewed, but they have been reluctant to name anyone else who was under 21 and present in the bar on the deck when it collapsed. He said privacy rights of people who were treated at the hospitals preclude police from obtaining from the hospitals the names, ages or other information about those who were on the deck that night and were later treated for injuries from the deck collapse.
Chase urged eyewitnesses or others who may have information about the incident to contact his office at 883-8200.
Meanwhile, the Diamond Horseshoe has reopened, with a newly constructed rear entryway stairs and landing replacing the deck entry that collapsed. It has been inspected and approved by the Polson building inspection office and the fire chief.
By John Stromnes of Montana Lee Newspapers - 08/25/2004
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