ARTICLE: Family awarded millions in wrongful death lawsuit

BOSTON — The family of a beloved Yarmouth coach killed in a bizarre bus accident outside Gillette Stadium will receive a minimum of $4.4 million after a civil verdict late Tuesday from a Suffolk Superior Court jury.

The accident in the fall of 2003 occurred as a bus shuttled passengers back to their parked cars at the stadium, in Foxboro, from the PGA Deutsche Bank Open golf tournament in Norton that day.

Among six local residents on the bus was Thomas Kelly, 64, of West Yarmouth and Naples, Fla., who taught English and coached football and basketball at Dennis-Yarmouth Regional High School for 30 years.

As the bus passed an empty parking lot, normally filled for Patriots' home games, a gust of wind hit a metal parking gate that should have been locked in place but was not. The gate swung open, and an 8-inch double-shafted pole crashed through the windshield of the bus, shooting diagonally across the aisle.

The pole pinned and injured Kelly and two others. Kelly's left leg was mangled and his right leg broken.

He was airlifted from the scene, underwent several surgeries and died almost a month later.

After his death, Kelly's family filed a wrongful death suit against five parties, including the bus driver and bus company, both of whom were exonerated by the jury this week.

But after the 2½-week trial, jurors decided three others — Apollo Security, Standard Parking, and Foxboro Realty Associates, which owns the land around the stadium — were responsible for the unsecured gate.

Kelly's wife and two sons will share a $4.4 million judgment. With interest, that could amount to $6.1 million, according to Andrew Meyer Jr., of Lubin & Meyer in Boston, an attorney for Kelly's estate.

"A very fine man was lost, and we are very heartened that a jury sat and listened intelligently and with interest to the very tragic case," Meyer said. "And we are pleased they have placed responsibility where responsibility lies."

But Lawrence Kenney Jr., an attorney defending Foxboro Realty, said his client should not have been held directly responsible because, in part, the parking and security companies who were in charge of the gates were subcontractors for Foxboro.

What's more, no one was told about the loosened gate.

"It's a classic premises liability case, which as a matter of law requires that we have some notice of a defective condition and an opportunity to secure and repair it," Kenney said. "The pin was in an inappropriate condition. No one to this day knows how that happened, so we'll explore that in our post-trial motions."

While Kenney may challenge some legal elements of the case, he said he doesn't plan to appeal the monetary award.

"It's a very unfortunate accident. Very tragic. That's a given," he said.

"But the legal liability for the incident is an issue we have to resolve."

Calls to attorneys for Apollo Security and Standard Parking were not returned.

Kelly was known as "a people person," one colleague said, who loved kids and coaching. He directed athletics at the high school for a short time before he retired in 1995, and he coached basketball at Cape Cod Community College.

After his death, a scholarship was established in his name. Over the past three years, about $60,000 worth of financial aid for college has gone out to D-Y graduates, his stepson Bill Moran said.

Kelly married Janice Kelly about 18 months before his death, and the couple had planned to split their retirement years between Naples and West Yarmouth.

His two sons are from a previous marriage.

"It was a very fair trial and we're happy just to go on, just to get this behind us," said Moran by phone yesterday, sounding tired and still distraught but thanking the community for its support and sympathy.

"That's why it went to court, to find out who was guilty and who wasn't guilty. We'll abide by that decision."

Source: The Cape Cod Times, December 20, 2007

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