As the splash pad at Palm Coast’s Holland Park continues to sit unused, fenced in and untended, a Circuit Court judge has set a trial date no sooner than September 2024 in the city’s litigation against contractors and subcontractors involved in the popular amenity that failed only weeks after it opened in May 2021.
The length of the civil trial, recommended by parties involved at a hearing on June 9, is a reflection of the immense technical and legal complexities of the case and the number of parties involved–the city on one side, four defendants on the other. Each named party has responded to the suit, rejecting the city’s allegations and pointing fingers either back at the city or at other contractors.
The complexity of the case is also a reflection of the challenge on the shoulders of the city’s legal team–and the expenses it will charge the city until the disposition of the case (at trial or through settlements), though the city would recoup all legal fees should it prevail. As of today, litigation has cost the city $81,037, City Clerk Kaley Cook said.
In a June 13 order, Circuit Judge Chris France set what will be a four-week trial starting at the beginning of September 2024, noting that “the summer months have proven to be difficult to deal with special set trials of this duration.” France is leaving open the possibilities that the trial would be heard by a senior judge, and that it could shift on the calendar.
Meanwhile the $5.1 million splash pad remains a sad eyesore of an expanse fenced off in chain links and green canvass, its enormous hand-carved black whale as if beached on a barren, 10,000 square foot expanse of baking concrete–the foamy sea-like blue and beige surface that itself became one of the problems long ago removed–and surrounded by dolphins, star fish, an enormous octopus and other hand-crafted sea creatures made more joyless by the absence of water and children.
It may look that way for a while. “Repairs are unfunded at this point and are not currently in progress,” a city spokesperson said today.
It is possibly not in the city’s interest to repair the splash pad and have it teeming with rejuvenated life at the same time that the city is seeking damages for the project gone awry: the eyesore in that sense would be Exhibit A in the city’s case against the contractors of “unacceptable failure,” in the words of the attorney the city hired in the case. But the companies are also arguing that, as one of them put it in its answer to the lawsuit, Palm Coast cannot recover damages because “it has failed to mitigate its losses or damages.”
The city hired Trevor Arnold of Gray Robinson, a statewide law firm, to represent it. He recommended moving ahead with a lawsuit over a year ago.
The city also hired Martin Aquatics, an engineering firm, to analyze what went wrong, propose solutions and outline costs. The firm’s report summarized numerous issues with the electrical system, the water filtering system, the pad surface’s foam, with the deck’s engineering, and with failures of following building codes
The city filed its lawsuit last November against BBI Construction management, the general contractor,
No Fault of Baton Rouge, La., which installed the splash pad surface, S&ME, which designed the pad, and Westfield Insurance Company, which had issued a $5.61 million payment and performance bond to BBI. The city is making a range of allegations against the three companies, and breach of bond against the bonding company. (See: “Lawsuit Cites Splash Pad Contractors’ ‘Collective Negligence’ and Bond Company’s Refusal to Pick Up Pieces.”)
Each company in turn has responded since, denying or rejecting the allegations, at times by pointing fingers in other directions, including at Palm Coast.
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“Some or all of the damages alleged by Palm Coast are the result of its own failure or the failures of those hired by Palm Coast to properly maintain the [splash pad],” No Fault argued in its answers to the allegations, “as a result any damages sought should be reduced accordingly. For example, improperly treating water in the Splash Pad system, including but not limited to chlorine in concentrations higher than specified in No Fault literature, or the use of improper cleaning techniques and/or chemicals.”
That one answer (there are many more) hints at the degree of complexity a jury would be faced with, and the innumerable witnesses that defendants and the city would put on to duel over intricate technicalities that would have to be defined before damages, if any, are calculated and assigned. Each company makes similar claims about the percentage of faults.
No Fault goes on to claim that damages to the pad were the result of “premature use of the water/splash pad system before the PIP [poured-in-place] sufficiently cured,” which implies that the city opened the pad sooner than necessary. No Fault also blames “improper design or construction of the drainage and water systems, which caused the PIP material to be submerged for prolonged periods of time subsequent entities performing work after No Fault,” including BBI and the city.
No Fault continues along those lines, in that the “negligence of Palm Coast, BBI, SM&E and/or entities hired by or on behalf of Palm Coast, BBI, and S&ME have contributed to and/or caused the damages alleged…”
S&ME in its answers blamed the damages on the “unforeseeable result of intervening and superseding causes” with which it had “no domain or control,” again citing the operation of the splash pad before its concrete cured as well as “improper construction means and methods.”
BBI put it bluntly: “BBI should not be held liable for any of the claimed injuries and/or damages,” it states in its answers. “BBI served as the Construction Manager during the construction of the Splash Pad and did not perform any of the work. Therefore BBI could not have caused any of the purported damages.” BBI said it had no legal responsibility for the damages that occurred once the splash pad began operations.
Before operations, all subcontractor work was done in accordance with code, BBI states. The company makes an allegation of its own: that the city and/or “entities not a party to this lawsuit have destroyed, lost, spoiled and/or otherwise failed to properly maintain the key evidence in this matter, whether intentionally or negligently,” resulting in BBI being “substantially prejudiced.” The claim may refer to the removal of the splash pad surface during the analysis of what went wrong, and may also suggest why all work at the pad has ceased.
BBI also claims that the splash pad was operated “in an unintended or abnormal manner,” whether in improper use of spray nozzles, improper water treatment or improper use of cleaning techniques and chemicals.
Each named party in the suit also defends against “speculative” damages. Westfield, the bonding company, incorporated in its defense all the defenses made by BBI, though it does not appear to reject the possibility that it would have some liability. That liability, it states, “is limited to the penal sum of the performance bond,” or the total bond amount–but nothing relating to attorneys’ fees, the loss of use or enjoyment of the splash pad, city time or labor, and so on.
Given the case’s complexity and the expected pre-trial motions ahead, September 2024 may be an optimistic and nowhere-near sure date. France, the judge, alluded to that in a curiously revealing part of his order a few weeks ago as he discussed scheduling, trial length, and who may preside, if not him: “The Court advised the parties that it would seek any relevant information that would affect these determinations,” he wrote. “That endeavor yielded only vague responses from court administration (mainly regarding senior judge availability) so the court remains predictably unhelpful. The Court will remain undeterred and continue making proper arrangements.”
