The parents of a 10-year-old boy who drowned in a Gaithersburg sediment control pond in January are blaming the owner, site manager and contractor of the property that contains the pond for failing to prevent their son’s death, according to a lawsuit filed Wednesday.
Nicole Bode and Felix McMullen, the parents of D’Angelo Jayvon McMullen, are suing several companies involved in the development of Neighborhood One — which includes the pond — in the mixed-used community of Crown. The lawsuit claims that the companies did not ensure that a required safety fence around the pond was fully constructed and properly maintained.
Those named in the lawsuit are owner/developer Westbrook Partners of New York, N.Y., site manager Warner Construction Consultants of Rockville and contractor Metro Earthworks of Lorton, Va., a division of Shirley Contracting Company LLC.
Montgomery County Fire and Rescue officials have said that when D’Angelo fell through the ice on the pond on Jan. 13 and died, there was only partial fencing surrounding the pond.
“[D’Angelo’s parents] want answers and they want to make sure this doesn’t happen to anyone else,” said Andrew G. Slutkin, the attorney who filed the case. He is a partner at Baltimore-based law firm Silverman, Thompson, Slutkin and White.
Claiming negligence and wrongful death in the suit, D’Angelo’s family is seeking damages in excess of $75,000, although Slutkin said the actual amount of damages awarded could be very high.
“It’s a multimillion-dollar case,” Slutkin said.
D’Angelo was playing with his brother and another boy on the iced-over pond Jan. 13 when the ice suddenly gave way. The pond is behind Harris Teeter grocery store in the Crown community. Fire and rescue personnel quickly rescued two of the boys, but the search for D’Angelo took longer, predicting that he could have been submerged for up to half an hour. He died at a local hospital later that evening.
On the following day, the city of Gaithersburg issued a notice of violation to Fran Speed, a representative of Warner Construction.
The notice required a 42-inch-high safety fence to be reinstalled on all open sides of the pond pursuant to the sediment and erosion control plan, according to Wes Burnette, division chief of the city’s Permits and Inspections Division. While there is not a city or state code requiring safety fencing on sediment ponds, a fence was required there as part of the planning approval process during construction.
Crown is a mix of thousands of residential and retail units built on the former Crown Farm at Fields Road and Great Seneca Highway.
The lawsuit claims that the defendants negligently did not comply with the applicable Gaithersburg code provisions and did not abide by the construction plan that was submitted to the city, which stipulated that a safety fence was a requirement.
Furthermore, the lawsuit states that the companies failed to install, maintain and regularly inspect the fence. It adds that whenever the fence was initially removed, the companies did not reinstall it in a timely manner.
Michael Post, the president and CEO of Shirley Contracting, said the business shared the community’s grief over the tragedy surrounding D’Angelo’s death. He also added that the lawsuit was a surprise.
“We were surprised to learn today that a lawsuit has been filed against the companies in connection with this accident,” he said. “At this time we are in the process of obtaining the lawsuit; however, we would like to make it clear that we disagree with its reported allegations and will be working with legal counsel to provide an appropriate response.”
John Wolf, managing principal at Westbrook Partners, could not be reached for comment Thursday. A representative for Warner Construction Consultants also could not be reached for comment Thursday.
The city of Gaithersburg was not listed as one of the defendants in the suit, even though it was also responsible for inspections of the property. Records previously obtained by The Gazette showed that the pond area had been in compliance with regulations on required safety fencing before the accident.
“We sued the owner of the property, the developer and the people that we believed removed the fence,” Slutkin said. “In our view, the city did not remove the fence and therefore we do not believe they were responsible.”
The suit also said that D’Angelo had a medical condition called Trisomy 8 Mosaicism, chromosome disorder, which caused him to “suffer from significant developmental delays.”
Bode, of Reprise Drive in Rockville, and McMullen, of Titania Way in Woodbridge, Va., have declined to comment for the story.
“They’re having a very difficult time,” Slutkin said. “They’ve lost their young child, who was a wonderful, sweet boy.”
A hearing in the case is scheduled for Aug. 1.