Suit filed after 2006 storm injury

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Attorney says case time has passed for suit, but judge denies motion to dismiss

By Calen McKinney


A Taylor County man has filed suit for damages he says he suffered when the Movie Gallery building was demolished by a microburst of wind more than six years ago.

Local attorney Bryan Bennett filed the suit in Taylor Circuit Court on Oct. 12 on behalf of Dakota Pendleton.

Listed as defendants are Deercreek Developers LLC of Campbellsville, B&P Design Inc. of Lexington and Perry W. Hibbard of Lexington.

Movie Gallery’s building was destroyed on May 18, 2006. National Weather Service estimated that winds that caused the destruction of the building and damage to a nearby Arby’s were around 60 mph.

The Movie Gallery building was rebuilt, though the business has since closed and another has opened in the new building.

According to Pendleton’s complaint, Hibbard and B&P Design staff designed the Movie Gallery building and Deercreek Developers owned and leased the building to the movie rental business.

Pendleton claims he was inside the Movie Gallery building when it collapsed, and as a result, suffered permanent physical injuries, medical expenses, emotional and mental pain and suffering and loss of enjoyment in his life.

The Movie Gallery building, Pendleton states, was built in a negligent manner, and, as such, the defendants are responsible for his injuries and damages.

Pendleton is asking to be compensated for his injuries and attorney’s fees and for his claims to be heard by a jury of his peers. In answers to Pendleton’s allegations, the defendants have filed motions to have the case against them dismissed.

On Oct. 26, Lexington attorney W. Craig Robertson III filed a response on behalf of B&P Design and Hibbard.

According to the answer, Robertson states that even if a judge ruled Pendleton’s claims to be true, they are barred by time limitations.

Kentucky’s statute of limitations for negligence against an architect is one year following an incident, according to the answer. As such, any action against the defendants should have been filed by May 18, 2007.

“Pendleton inexplicably waited over six years to file his claim.”

According to the answer, two other civil lawsuits were filed after Movie Gallery’s building was destroyed. Both were settled and dismissed in 2007.

“It would be patently unfair, and contrary to law, for B&P and Hibbard to once again have to respond to an incident which occurred over six years ago,” the motion to dismiss states.

“B&P and Hibbard have long since closed their files on this matter and have been relying on the fact that the statute of limitations for any additional claims expired years ago.”

On Nov. 2, Lexington attorney Shaye Page Johnson filed a response to Pendleton’s claim on behalf of Deercreek Developers. In her motion asking that Pendleton’s claim be dismissed, Johnson, too, states that Deercreek having to respond to a claim about an incident more than six years after the fact is unfair.

Taylor Circuit Court Judge Dan Kelly denied the motions to dismiss Pendleton’s complaint during a hearing in Taylor Circuit Court on Friday. According to court records, no court dates were set.