Michael T. Bigos, trial lawyer and partner at Berman & Simmons

Justice Achieved and Fire Safety Improved

In the middle of a September night, a fire ripped through an apartment building at 35 Main Street in downtown Biddeford, Maine. Michael Moore, 23, and his best friend and roommate James Ford, 21, were trapped in their attic apartment unit. By the time they were carried out of the building by firefighters, the men were unconscious and had suffered severe smoke inhalation. Moore died the next day at Maine Medical Center in Portland. Ford died nearly one month later. The men had been friends since grade school.

The investigation ultimately led to the arrest of 18-year-old Dylan Collins, who set the blaze because he was angry with his girlfriend, who lived in the building. She and her family escaped from the fire.

Needless to say, the tragedy had a profound impact on those who loved Michael and James, as well as the firefighters and medical personnel who tried to save them. What made the grief even harder to bear was the fact that these deaths were absolutely preventable. According to the Maine State Fire Marshal’s Office, there were 27 National Fire Protection Association code violations at 35 Main Street that “significantly contributed” to their deaths. If the building had been up to code, and the men could have accessed a safe way out, they almost certainly would have lived.

Berman & Simmons was retained by the families of Michael and James to pursue wrongful death claims against the building’s landlord, Nielsen Clark. As the attorney for the families, my goal was two-fold: first, to achieve a remedy that would provide justice and full compensation for the Moore and Ford families; and second, to help prevent similar tragedies from happening in the future by shining a light on the broader problem of unsafe housing conditions. Prevention was an important goal for both families. They did not want their loved ones to have died in vain.

Overcoming Blame

For a first step toward our goals, we would need to overcome blame. The defense sought to blame the victims: Why didn’t they try to escape through a window? Why didn’t they crawl through a passageway that led to another exit? Maybe they had disabled the smoke alarms?

The defense also wanted to focus on the arsonist. How could Nielsen Clark be blamed for the deaths, they argued, when it was Dylan Collins who started the fire?

We needed to show that the landlord should be held responsible in civil court, just as Dylan Collins would ultimately be held responsible in criminal court. It was our position that the actions of both parties contributed to the deaths of Michael and James. The actions of one could not legally nullify the actions of the other.

We shifted the focus of the case to the blatant code violations at 35 Main Street.

According to the State Fire Marshal’s Office, there were more than 20 safety violations at the building, including the lack of a second fire exit and the lack of working smoke alarms, as required under the National Fire Protection Association life safety code.

The investigative reports of the Fire Marshal’s Office and the Maine Attorney General’s Office were crucial pieces of evidence as we built our case that Nielsen Clark had acted negligently. On top of those reports, we also sought and obtained expert testimony about the cause and origin of the fire, and the impact the code violations had on Michael and James’ chances at survival.

A former investigator with the State Fire Marshal’s Office provided his expert opinion: “If the apartment was equipped with a second means of egress, as was required, it is almost certain that Michael and James would have escaped the building without injury or with minimal injury.”

Recreating the Circumstances

Michael and James were searching frantically for a way to escape their apartment as flames climbed up the only stairway, but the two men were trapped.

The terror they experienced consciously, before they were overcome by smoke and heat, was key to demonstrating the suffering they endured prior to their deaths. In many cases like this one, however, there are no witnesses to help recreate the moments of the tragedy. Fortunately, we had a witness.

Chandra Osthoff of Essex, Iowa, had been communicating with Michael and James via Skype in the early morning hours when the fire started. Once James learned of the flames, he stopped the Skype call and called Chandra back from his cell phone. Chandra spoke with James, who was in a state of panic, until the line went dead about a minute later.

As we put our case together, I developed a rapport and a level of trust with Chandra. When I prepared her for deposition, I emphasized the importance of justice—not only for Michael and James, but for all tenants who are put at risk because of substandard housing conditions. At deposition, she conducted herself beautifully, providing a real time account of what the men had gone through.

The Tipping Point—Mediation

About nine months after we filed the wrongful death lawsuits, the cases were transferred from York County Superior Court to U.S. District Court in Portland. We had taken nearly 20 depositions and felt we had the advantage. This belief was bolstered when the defense team requested a mediation, which is not required in federal court.

Friends and relatives of Michael and James, including their sisters, attended the mediation. I created a PowerPoint presentation in an effort to capture the essence of the dispute and convince the defense they would not want to proceed to a trial. Slides included understandable photos and graphics, 911-call audio, and dramatic video deposition clips from police, co-workers, and family.

Soon after the mediation, to the great relief of the families, we were able to reach settlements in both cases. The terms of the final settlements are confidential.

Within a year, Dylan Collins was sentenced to 50 years in prison after pleading guilty to arson and murder. Finally, civil justice and criminal justice. One without the other would have been another tragedy for the families.

Addressing the Needs of the Clients and Society at Large

In this civil case, we were proud to achieve our two primary goals: compensation for the families of the victims, and bringing safety-code compliance, as well as the need for better enforcement, into the public spotlight.

Tenants, particularly low-income renters, deserve safe housing and landlords who comply with fire and building codes, plus adequate oversight by towns and cities.

Since the cases were resolved, the City of Biddeford has hired an extra inspector to ramp up inspections of apartment buildings, with a goal of getting to more than 600 buildings. In addition, Biddeford continues to crack down on landlords who are out of compliance.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.