Posted on 04 Jun 2012 by Neilson
The mother of three girls killed in a Christmas morning fire plans to sue city officials for property damage, civil rights violations and the intentional destruction of evidence when they tore down her Shippan Point home a day after the blaze.
A lawyer for Madonna Badger, the New York City advertising executive who lost her parents and daughters in the fire, plans to argue she suffered a permanent loss of property valued at more than $3 million when city officials demolished her burnt-out house and its contents, according to the notice of intent to sue filed with the Stamford town clerk's office Friday morning.
In response to the notice, Stamford's legal affairs director said officials plan to "aggressively" defend claims brought against the city.
The notice names Director of Operations Ernie Orgera and Chief Building Official Robert DeMarco as defendants, in addition to the city officials listed as defendants in a separate notice of intent filed by Badger's estranged husband in early May.
Badger's notice accuses DeMarco of neglecting to warn her when he gave the order to demolish the 116-year-old, three-story home at 2267 Shippan Ave. The notice says the city violated Badger's civil rights because the demolition deprived her of personal property without due process.
Badger's lawyer, Frank Corso, a personal injury attorney with offices in Boston and Rehoboth, Mass., claims she suffered personal injuries and extreme emotional and mental anguish and that she would have been able to recover compensation from "responsible parties" if the house had not been torn down.
"Madonna Badger's damages arising from the perils of the fire, including the negligent infliction of emotional distress she endured while in the zone of danger and while attempting to rescue her children and parents are continuous and permanent," the notice said.
Director of Legal Affairs Joe Capalbo said the city's position remains unchanged from the one taken when Matthew Badger filed his notice of intent to sue.
"This is undoubtedly a tragic situation, and it is understandable that one would want to place blame in a situation like this," Capalbo said in an e-mail. "However, it is misguided to direct blame at the City and its Officials. We firmly believe the City has no liability and we intend to aggressively defend any claim."
The claim about intentionally destroying evidence, known as spoliation, was also alleged in Matthew Badger's notice to sue. Matthew Badger included a wrongful death claim in his notice of intent, arguing he wanted to hold the city liable for negligence and failing to properly inspect ongoing renovations at the home.
In a 2006 ruling, the state Supreme Court agreed to recognize spoliation of evidence as a tort, or a wrongful act in civil court. The ruling allowed parties afterward to sue for spoliation of evidence claims in Connecticut. Because of a previous Supreme Court case in 1996, the state also allows juries to infer the destroyed evidence would be unfavorable to the party that intentionally destroyed it.
With the notice, Madonna Badger and her attorneys joined a deepening legal morass arising from the fatal fire, which killed her parents and three daughters -- 9-year-old Lily and 7-year-old twins Sarah and Grace -- on Dec. 25 when the fire tore through her home on Shippan Point, an affluent waterfront community on Long Island Sound
In late April, an insurance company covering contractor Michael Borcina's company, Tiberias Construction, filed a lawsuit asking a New York state judge to release it from defending lawsuits and paying claims related to the fire because of alleged misrepresentations on his applications and yearly reports.
An initial investigation revealed the fire began after Borcina, a friend of Madonna Badger, cleaned out the fireplace shortly after 3 a.m., placing embers in a bag and leaving them inside a new mudroom, or just outside in an enclosed trash bin.
Borcina and Madonna Badger escaped the fire. The three girls and Madonna Badger's mother, Pauline Johnson, died from smoke inhalation. Her father, Lomer Johnson, died from blunt head trauma suffered in a fall outside a second-floor window and onto the roof.
Police and fire officials described the blaze as accidental and said no arrests were anticipated, but State's Attorney David Cohen has been reviewing an investigation of the fire since February and will make the decision whether criminal charges are filed. Cohen did not return calls for comment Friday.