Two people – one whose leg was amputated so she could be removed from rubble – injured in an apartment building that partially collapsed have asked that a motion to dismiss their lawsuit be denied.

Scott County Court documents filed electronically Tuesday show the Lexus Berry and Quanishia White-Cotton Berry have filed a resistance to Village Property Management LLC’s motion to dismiss.

On May 28, Quanishia (“Peach”) Berry and Lexus Berry were in their apartment when the west exterior wall of The Davenport partially collapsed.

Lexus Berry fell to the floor but was able to curl up and hang on to the little flooring that remained beneath her when the building collapsed. Peach, however, fell through the floor and down several stories to the rubble below. Structural debris fell on top of her, trapping her under the bricks and steel that came down from the building, a lawsuit says.

The resistance document says it took about eight hours to rescue Peach, and the only way to free her from the rubble was to “emergently amputate her left leg above the knee.”

The Berrys have filed suit against “the many parties responsible for this tragedy” including

• Davenport Hotel LLC dba The Hotel Davenport Apartments
• Building owner Andrew Wold, individually
• Andrew Wold Investments, LLC
• Village Property Management, LLC
• Alliance Contracting, LLC
• Select Structural Engineering LLC
• Bi-State Masonry, Inc.
• City of Davenport
• Waukee Investments I, LLC
• Parkwild Properties, LC
• Trishna R. Pradhan (the city’s chief building official who voluntarily resigned after the collapse)
• Richard E. Oswald (director of Development & Neighborhood Services)

“Chief among them is the City of Davenport. In a shocking display of disregard for the safety of the residents they are charged with protecting, the City, as well as two of its employees, Pradhan and Oswald, turned a blind eye to the imminent danger to those who lived in The Davenport and thereby contributed to cause the catastrophic injuries and deaths that occurred when the building collapsed,” the resistance says.

The resistance accuses the city and its employees of:

• Doing nothing to warn or vacate the residents of The Davenport even after noting on February 2, 2023 (months before the collapse) that “[t]here is visible crumbling of this exterior load bearing wall under the support beam” and declaring the building a Public Hazard.

• Doing nothing to warn or vacate the residents of The Davenport even though five days before the collapse an engineer reported that large patches of brick façade on the west wall – which the City knew to be load bearing – were “ready to fall imminently” and that the façade “is currently about to topple outward.”

• Doing nothing to warn or vacate the residents of The Davenport after observing the building’s imminently dangerous condition on May 25, 2023 – just three days before the collapse – “including that the load-bearing west wall was bulging out and supported by nothing other than flimsy, unanchored two-by-fours – which of course would provide no support at all.”

• “Notwithstanding the conditions above – which anyone, whether an engineer or not, would know to be immediately dangerous – the City, Pradhan, and Oswald shockingly noted that the building passed inspection on May 25, 2023.,” the resistance says.

• Ignoring a 911 call on May 27, 2023 – one day before the collapse – from someone working at The Downtown Davenport Partnership reporting “the wall is bulging out” and that someone there working on the building told one of his employees “to get out of the way because it’s not looking good” according to the resistance.

The resistance says it has now been discovered that the City of Davenport issued two official Notices to Vacate the building, the first on Feb. 10, 2023, and the second on May 3, 2023. Having determined that the building was imminently dangerous to its residents, the City, however, failed to do as the Code requires in vacating the property. Among other things, the law requires every Notice to Vacate be posted at or upon each exit of the building advising residents: DO NOT ENTER UNSAFE TO OCCUPY.

“Instead of following the law and providing those in harm’s way with the notice required, the City sent both notices to a P.O. Box and seemingly did nothing else. In other words, although the City determined that The Davenport was imminently dangerous and needed to be vacated, it failed to vacate the building,” the resistance says.

The resistance says “To put it simply, the City and its employees are among the most culpable defendants in this case and cannot, as a matter of law or equity, be dismissed.

“Perhaps more shockingly, it is now known that the City’s fire department went to the Davenport on May 27, 2023, presumably in response to this call, and spent a grand total of four minutes there before concluding that ‘no further action [was] needed,’” the resistance says.

The resistance says the Iowa legislature specifically determined that municipalities were not entitled to inspection immunity when the acts or omissions of an employee constitute a criminal offense.

“That Plaintiffs survived does not prevent them from alleging Defendants’ acts and omissions constitute involuntary manslaughter,” according to the resistance.

“Plaintiffs further allege that because the building was in such condition as to make it immediately dangerous to the life and safety of its occupants, it was required to be vacated,” the resistance shows.

“The City’s claim that there is ‘no basis in fact or law’ for Plaintiffs’ accusations is a throwaway comment untethered to the plain reality that people died and were seriously injured under the City’s watch and because of the City’s inaction,” the Berrys say in the resistance.

The Berrys request that this matter be set for oral argument and that the City of Davenport, Trishna Pradhan, and Richard Oswald’s Motion to Dismiss be denied.