Denver attorney Ross Ziev won a $10.5 million verdict for a mother and daughter who say their landlord and property manager failed to protect them from exposure to methamphetamine fumes and chemicals that left them permanently disabled. The decision in the premises liability case was handed down Aug. 27 by Arapahoe County District Court Judge Frederick Martinez.
“As a plaintiff’s lawyer, we like juries,” Ziev said. But the case was heard in a bench trial due to a jury waiver provision in the clients’ lease, he said, “So I lost my jury. And I can’t say that it didn’t make me nervous.”
“I’m just so thankful that Judge Martinez was such a reasonable person and such a protector of the community here, because these were low-income people and they weren’t being protected by the people that were supposed to,” Ziev added.
Kathleen Keaten and her daughter, Delaney Keaten, lived in the Main Street Apartments in Littleton from 2005 to 2019. Both have been diagnosed with permanent brain injuries and, according to the judge’s order, exhibit “dementia traits which contemporaneously manifested themselves” while they were exposed to toxic chemicals in their home. Martinez concluded there is “ample evidence” their symptoms were either aggravated by or didn’t exist prior to the exposure.
“It is highly unlikely that in the absence of toxic exposure at Main Street Apartments, that both Plaintiffs, with a 30-year age difference and different medical histories, who spent the majority of their time in Unit 303E, developed the same symptoms mimicking a brain injury at the very same time,” Martinez wrote.
The Keatens started noticing a chemical smell in their apartment in 2017. They believed the fumes were coming from the unit below theirs and reported them to the on-site property manager, who in turn reported the complaints and recommended measures to investigate and fix the situation in a letter to his direct supervisor, Lydia Smith. The on-site manager’s employment was terminated and the recommendations were ignored.
In April 2018, the Keatens informed Smith they were suffering symptoms including a burning nose and throat, bloody noses, difficulty breathing, dizziness, headaches and difficulty concentrating, which they suspected was the result of exposure to fumes from the unit below. Later that month, the Keatens’ apartment failed a safety inspection after the inspector noticed the chemical smell, but the unit passed reinspection a month later.
In August 2018, the tenant in the apartment below the Keatens was evicted. The property owner and manager found there was a strong ammonia odor in the vacated apartment, according to court records, which can be a sign of methamphetamine production.
Main Street Apartments didn’t take pictures during the eviction, despite a policy to do so, but the Keatens photographed the contents being removed from the apartment below as the tenants were moving out. “Looking at those pictures, It’s almost like a Where’s Waldo. These people had all sorts of stuff in their apartment. They were ‘borderline hoarders’ is what the testimony said,” Ziev said. The photos show various tanks and canisters, including a propane tank, according to Ziev, despite the fact that there were no balconies or barbecue grills where it would have been safe to use the propane.
“The property management company said that they did a diligent job at inspecting this property. But clearly, they didn’t see any of these tanks inside the apartment,” Ziev said. “They didn’t even question: Why does a person have a propane tank in an apartment that doesn’t have a balcony? And that’s after they were already put on notice that there was a possible meth lab.”
The Keatens sued Littleton Main Street LLC, which owns the apartments, and Terra Management Group LLC, the property manager, under the Colorado Premises Liability Act in 2019. The Keatens are considered invitees under the CPLA, according to the court’s order, and may recover damages caused by the landowner’s “unreasonable failure to exercise reasonable care” to protect against dangers the landowner knew or should have known about.
Martinez found the defendants should have known about the dangerous conditions in the lower unit had they “exercised reasonable diligence” in investigating the Keatens’ complaints or completed testing of the apartment as requested by the Keatens. Testing in 2020 revealed that the lower unit had multiple areas where methamphetamine levels exceeded permissible limits, including concentrations in an HVAC duct that were 44 times the regulatory limit.
The judge concluded Main Street Apartments failed to exercise reasonable care to protect the Keatens against the dangers in the apartment below them. Martinez also said the court was “extremely concerned” about the defendants’ failure to preserve evidence and their attempts to “cover up, hide or destroy evidence.”
Martinez awarded Kathleen Keaten just under $1 million in economic losses, $250,000 in non-economic losses and more than $1.9 million for physical impairment. Delaney Keaten was awarded almost $2.7 million in economic losses, $250,000 in non-economic losses and more than $1.9 million for physical impairment.
Ziev noted that due to their income level and disabilities, the Keatens’ past medical bills were low enough that they didn’t even claim them at trial. All of the economic damages they were awarded are for future medical care.
Ziev has had a big year so far. He was part of a team that won the Case of the Year Award from the Colorado Trial Lawyers Association in June. That class-action case, Agazi Abay et al. v. City of Denver, challenged law enforcement’s response to the George Floyd protests in 2020 and resulted in a temporary restraining order limiting the Denver Police Department’s use of force.
Attorneys for Littleton Main Street and Terra Management Group did not comment on the court’s decision.