Landlord sued in fatal Fargo fire claims roommate was maintenance worker for unit

FARGO – When Donna and Dwayne Peyton’s son James died in an apartment fire, they say they had no plans to sue his landlord – one of the largest property management firms in the region.

“We had no idea – we live far enough away,” said Donna Peyton, who still gets teary when she talks about losing her 31-year-old son to smoke inhalation in the fire on Jan. 29, 2012.

But when Goldmark Property Management sent their son’s roommate a letter asking for him to pay for the damages – after Goldmark’s insurance had already paid a claim on the fire – the Peytons say they decided it was time to file the wrongful death lawsuit.

Dwayne Peyton said “that really put us over the edge.”

“If it makes them sweat a little, maybe that’s a good thing,” he said.

The lawsuit filed last week in Cass County District Court claims a Goldmark maintenance worker removed faulty smoke detectors from the apartment building at 4345 10th Ave. S. in Fargo but didn’t replace them.

Kurt Bollman, Goldmark executive vice president and chief financial officer, denied the Peytons’ claims alleging the firm is responsible for the lack of working smoke alarms in the unit. A fire marshal’s report indicated that in the shared apartment, there was only one functional smoke detector, and it was in a bedroom.

Bollman also said the maintenance man for the apartment was Peyton’s roommate, Jason Nelson, who worked as a caretaker at the property.

He declined to say whether the company replaced the faulty alarms after they were removed, saying it was sensitive information and part of the lawsuit.

“I can tell you that Goldmark, as a matter of practice, does not knowingly ignore requests for repair and replacement of smoke alarms,” Bollman said.

City inspectors had found missing smoke alarms at the apartment building before, said John Mrozla, a Fargo housing inspector.

Inspectors issued orders to correct missing or nonfunctioning smoke alarms, or for smoke alarms with missing batteries, in five units at Ashbury Apartments during the city’s last inspection there on Feb. 4, 2009, Mrozla said.

In a follow-up visit a month later, all five corrections had been made, he said.

In Goldmark’s response to the lawsuit filed Monday, the company denies it has a duty to maintain the smoke detectors in the apartment and claims Peyton’s death was his fault or the fault of others Goldmark has no control over.  

Mrozla said tenants and landlords share the responsibility for keeping smoke alarms working.

Generally, if a battery has been removed from a working smoke alarm by a tenant prior to an inspection, the property owner or manager will fix it during the inspection, and no corrections order will be issued. But it’s the owner’s responsibility to provide a working smoke detector, he said.

Bollman said Goldmark was “more than confident” the building was up to code.

He also said Goldmark asked Nelson for the cost of repair to the apartment, at the behest of its insurance company, under its subrogation rights, or third-party rights to recover costs from the residents.

Peyton’s parents say the lawsuit, which asks for $100,000 in damages and emotional distress, is not about the money at its heart. Both Peytons say that part of their purpose in filing the lawsuit is to force Goldmark to acknowledge wrongdoing in their son’s case and keep smoke alarms in working order for its other tenants.

“If it could happen in one place – and we live in a college town where there are a lot of rentals – it seems like something was off,” Donna Peyton said. “It didn’t seem right.”