Defendant in wrongful death complaint again seeks to transfer case

Steve Gonzalez Jan. 14, 2008, 5:00am

Hiram Ely

For the second time in about six months, a defendant in a Madison County wrongful death suit has asked that the case be transferred to Jersey County.

In October, Madison County Circuit Judge Andy Matoesian transferred a complaint filed by Janet Schleeper of Brussels against Caldwell Tanks over her husband's work-related death.

Schleeper claims her late husband Leo Schleeper died while lawfully cleaning, inspecting and disinfecting the Southland Tower, a 200,000 gallon elevated water tower on Oct. 24, 2006, pursuant to a contract with the water company and Leo's employer Heneghan and Associates.

According to the original complaint filed June 27, 2007, Jerseyville County Rural Water owned and held exclusive control of Southland Tower.

The suit claims Leo was climbing a 35-foot ladder to the top of the tank which was the only way to exit the inside of the tank when he fell 28 feet and landed on the bottom steel bowl. The Southland water tower is five miles south of Jerseyville.

She claims the water company negligently and carelessly failed to provide Leo with a safe place to work by failing to equip the inside of the eater tower with a fixed ladder to safely access and egress from inside the bowl and failed to protect him from a dangerous condition when they knew, or should have known the dangerous condition involved an unreasonable risk of harm.

Schleeper also claims co-defendant Caldwell Tanks of Louisville, Ky. negligently manufactured and installed the tower by failing to equip it with an inside fixed ladder when the tower was built in 1993.

After Matoesian sent the case to neighboring Jersey County, plaintiff attorney Thomas Keefe filed a motion to reconsider prompting Matoesian to hear arguments on Nov. 2, 2007.

Matoesian denied the motion ruling he did not have jurisdiction to hear the motion because the case was already transferred to Jersey County prompting Keefe to voluntarily dismiss the case in Jersey County and re-file it in Madison County on Nov. 28, 2007. The newer complaint, with virtually identical allegations, prompted Caldwell to again file a motion to transfer.

Caldwell Tanks argues that allegations contained in Schleeper's complaint do not satisfy venue requirements to keep the case in Madison County.

Represented by Hiram Ely of Louisville and Stephen Beimdiek of St. Louis, Caldwell also argues that state statutes require civil actions be brought in the county of residence of any defendant or in the county where the alleged wrong occurred.

Caldwell Tanks is based in Kentucky and does not have an office or in Madison County, it argues.

Venue is improper in Madison County because all of the witnesses and responding emergency personnel reside in Jersey County and all reside within two miles of the courthouse in Jerseyville, Caldwell Tanks also argues.

The case should again be transferred under the doctrine of forum non conveniens because the private and public interest factors weight heavily in favor of transferring the case to Jersey County, it argues.

Caldwell Tanks argues that it would be unfair to burden a Madison County judge and jury when the residents of Jersey County have a significant interest in the case because the parties reside there.

Schleeper's choice of Madison County as a forum should be given little or no deference because her husband died in Jersey County, not Madison County, Caldwell Tanks argues.

According to Schleeper's complaint, Leo's next of kin have been permanently deprived of his love, companionship, society, support and guidance. They claim they have incurred hospital and burial expenses in a substantial amount.

Schleeper is seeking damages in excess of $150,000.

In February 2007, a Jersey County coroner's jury returned a verdict of "undetermined" as to how Leo Schleeper, 55, died.

Autopsy results showed head and neck blunt force trauma was the cause of his death. No drugs or alcohol were found in his system.

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