Galveston suit over beach house fall dismissed

John Suayan, Galveston Bureau Feb. 6, 2012, 9:00am

GALVESTON - The plaintiffs in a wrongful death suit stemming from a Port Arthur fireman's fall from a Crystal Beach beach house balcony last year have recently submitted a notice to non-suit without prejudice.

Kalyn Layton, who represents the estate of Steven Duane McShan, and David and Marci McShan "do not desire to further prosecute their cause of action (against Nacogdoches resident Kelley Moon and Swede's Beach Properties Inc.) at this time," the two-page document filed Jan. 20 before the Galveston County 212th District Court says.

After ending the suit in Galveston County, Layton filed a similar wrongful death suit in Jefferson County District Court on Jan. 30.

Steven Duane McShan's family filed a lawsuit against Moon and Swede's Nov. 28 in the same court, alleging the latter two contributed to the 24-year-old Lumberton native's death on July 2.

The original petition asserted the decedent was invited to the beach house owned by Moon in Antigua Circle when he fell from the third floor balcony.

A July 5, 2011, Port Arthur News article reported Steven Duane McShan was an off-duty Port Arthur firefighter attending a party at a friend's beach house over the Fourth of July weekend when he fell about 40 feet while trying to climb a balcony to a third level where children were playing when a railing gave way.

The lawsuit stated that Moon hired Swede's to perform maintenance and other real estate services on the property, including making sure the house was in a safe and habitable condition and advertising the home as available for rent.

The complainants contended the condition of the balusters on the railings "presented an unreasonable risk of harm to the invitees" and caused Steven Duane McShan's death, faulting the respondents for failing to remedy the problem.

Moon and Swede's each provided original answers to the allegations against them, both stating they are not responsible for McShan's death.

Attorney H. Mark Burck of Houston represented Moon while Doyen Sebesta served as legal counsel for Swede's.

Case No. 11-cv-1877

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