Alarms adorned the exits and bedrooms of a Chicagoland memory care facility. Occasionally, their mentally limited residents would wander, and the safeguards were intended to protect them from leaving without supervision. But one frigid winter night, facility staff failed to follow protocol. A delirious 87-year-old man woke from his bed and roamed towards the exit. It was freezing and dark as the resident hobbled outside. Upon returning to the facility, he found the door locked with no one answering the intercom. His frail stature was exposed to deadly conditions. He was trapped alone in the Chicago winter air and running out of time.
The man, a husband and father of five, suffered from mild to moderate dementia and thus required precautionary measures to ensure his safety, measures the facility staff failed to adhere to. He woke in the middle of the night and made his way outside for a walk — not unusual or atypical for residents of this assisted living facility. As he left his room, the first alarm sounded to alert the staff. It went unanswered. A second alarm signaled as he walked down the hall and opened the exit doors to the freezing air outside. It too went unanswered. Now, completely locked outside and alone, the man struggled to find a way back in. He pushed the intercom button. Once again, it went unanswered. No one was around to help. Mentally incapacitated and unaware of his surroundings, he remained outside for almost two hours. Tragically, the man slowly and painfully died of hypothermia.
Grief stricken, man’s mourning family sought justice and accountability. An attorney that was close to them contacted Jordan Powell and Matt Passen of Passen, Powell & Jenkins five days after the incident. Because of the unexpected and sudden nature of his death, the family was left confused and in the dark about what had taken place, so Jordan and Matt went to task to get the answers.
Jordan and Matt's case strategy had two main focal points: first, they needed to understand how the facility's staff failed to stop the victim, given the precautions specifically meant for this exact scenario. When they acquired security footage, the duo saw that the care facility simply didn’t follow protocol. Second, they wanted to maximize damages and convey the magnitude of the family's emotional loss. It was important to communicate the pain and suffering that comes with hypothermia. To aid in this endeavor, the duo retained an emergency room physician with extensive expertise in wilderness medicine who had studied hypothermia.
The Defense directed all their attention to the man's age and quality of life, even going so far as to say he died painlessly. The initial mediation ended with a $1.5 million offer and conflicting opinions about risk and the case's value. Collaborating with their medical expert, Jordan and Matt looked to DK Global to create an animation that magnified every aspect of the physical and emotional damages related to the victim's passing.
The animation began by setting the scene, explaining how the elder man eloped from his apartment into the freezing outdoor temperatures around 5:00am. CCTV footage showed the man, helped by a walker, trying to reenter the building after ambling outside. He entered the outermost door into a vestibule. However, he found the door to enter the main building locked. He tried using an intercom to get the staff’s attention, but no one replied. For over half an hour, the man entered and exited the vestibule, fighting through confusion to gain access to warmth and safety. Next, the animation educated how seniors are particularly susceptible to hypothermia, explaining how extreme cold impacts their organ systems. As the man began to lose heat faster than he could produce it, his body diverted blood circulation to his core to keep his internal vital organs functioning. The video detailed the pathophysiology of hypothermia, ranging from central nervous system effects, cardiovascular changes, neuromuscular changes, respiratory and gastrointestinal problems, kidney and metabolic issues, and even changes to his blood. Finally, the presentation transitioned back to the facility’s CCTV footage, jumping forward an hour and a half later, when a departing staff member found the man collapsed in the parking garage. He passed from a hypothermia-induced heart attack shortly after.
Jordan and Matt showed their video presentation to the Defense. If they couldn’t reach a settlement, they’d show it to the jury at trial. Not wanting others to witness the 87-year-old’s pain and suffering, the Defense asked for a second round of mediation. Jordan and Matt successfully settled the case for $2,875,000 — close to double what the Defense initially offered.
Jordan Powell is a founding partner at Passen, Powell & Jenkins, who represents victims of negligence. He was named to Chicago Daily Law Bulletin's 40 Under 40 and is a 13-time Illinois Super Lawyers distinction recipient. He also serves on the Board of Directors for the Society of Trial Lawyers. Jordan is an active member of the Illinois Trial Lawyers Association, the Traumatic Brain Injury Litigation Group, and the Nursing Home Litigation Group of the American Association of Justice.
Matt Passen is a partner at Passen, Powell & Jenkins who has recovered multiple seven- and eight-figure verdicts and settlements for his clients. He was named to Chicago Daily Law Bulletin's 40 Under 40 and is heavily involved in local and national bar associations, including the Chicago Bar Foundation's Young Professionals Board and the National Crime Victim Bar Association. In addition to his general membership to the Illinois Bar, Matt is also a member of the Federal Trial Bar for the Northern District of Illinois.
