Paralyzed musician gets $6.2 million in Travis County trial

September 2, 2011 | In The News, Sean Breen

by Chuck Lindell, America-Statesman Staff

A Travis County jury has awarded $6.2 million to a former Austin musician who, after drinking at a private party, was paralyzed when he dove into an underfilled apartment complex pool in 2005.

Jurors determined that the man, Jordan VanDusen, was 49 percent responsible for his injuries and the owner of Longhorn Landing Apartments was 51 percent liable for failing to close a dangerous pool or warn swimmers that water levels had fallen about 11/2 feet.

The division of liability means VanDusen, left a quadriplegic with limited use of his arms, would receive 51 percent of the $12.4 million in damages if the judgment stands. Jurors returned the verdict Monday night after two days of deliberations and a nine-day trial.

“We never, ever contested responsibility for Jordan,” said Sean Breen, VanDusen’s lawyer. “He admitted he made a mistake — a momentary, thoughtless mistake.”

But swimmers also should be able to expect that an open pool is safe to use, Breen said. Instead, he said, managers of the apartment complex at 4700 E. Riverside Drive failed to close the pool even though employees noticed that water levels had dropped and even though state and city laws require underfilled public pools to be closed.

In addition, testimony showed that Aspen Square Management — which owned the apartment complex when VanDusen was injured but sold it in October — did not have appropriate safety procedures in place, Breen said.

VanDusen was a guitarist, singer and songwriter for the now-defunct band JVD who had moved from New York state to Austin with bandmates two years before the accident. A videotape, shot by a friend and played for jurors, showed a group roughhousing around the pool at 2 a.m. before VanDusen, then 23, dove into an area that should have been 4 to 41/2 feet deep but instead was 21/2 to 3 feet deep.

Jeff Ray, lawyer for Aspen Square, said the company will appeal the verdict.

Ray argued that VanDusen was solely responsible for his injury because the pool’s depth was obvious, signs prohibited diving at the pool and VanDusen’s judgment was impaired by alcohol. Blood tests after the accident showed VanDusen’s blood alcohol level was 0.09, he said. The legal limit to drive in Texas is 0.08.

Breen argued that the apartment complex, marketed to college-age residents, condoned pool parties where alcohol was consumed, yet neglected to plan for associated risks.

But Ray noted that jurors, answering a separate question, also found VanDusen to be 51 percent responsible for negligence in causing his injury. “If a plaintiff is more responsible for causing the accident, the plaintiff receives nothing,” he said. “So we believe there is a conflicting jury finding that we will appeal.”

Ray also will ask District Judge Orlinda Naranjo to dismiss or reduce the award before Naranjo enters a final judgment, which typically takes about a month.

Since the accident, VanDusen has been living in New York, where Medicaid benefits are more generous, but hopes the jury award will let him return to Austin.

“I really enjoy it down here; a lot of my friends still live here, and I hate the cold and snow of New York,” VanDusen said. “This means I’ll have options and better care from doctors and therapists familiar with my type of injury.”

Now 28, VanDusen hopes to continue writing songs by computer and recently purchased a harmonica “so at least I can play an instrument.”

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