Federal judge finds security company may be jointly liable in murder case
by Michelle Lore Associate Editor
Steven Van Keuren, shown here after his arrest, was convicted of double murder for the death of Teri Lee and her boyfriend, Timothy Hawkinson. |
The high-profile case arises out of the murders of Teri Lynn Lee and Timothy Hawkinson, Sr., who were killed in a home that was armed with an allegedly faulty ADT security system. (See “Woman suing for negligent security finds herself at the defendant’s table,” in the Aug. 10, 2007, issue of Minnesota Lawyer.)
Invoking the comparative fault statute, ADT argued its exposure should be limited to its own portion of any fault the jury attributes to it.
But U.S. District Court Judge John Tunheim disagreed, finding that ADT’s interpretation of the law would likely eviscerate the negligent security claim.
“[A]llowing ADT to invoke comparative fault may well be to allow ADT to shirk the precise duty that it assumed, and possibly to escape liability altogether, as many juries asked to determine who was comparatively more responsible for Lee’s death — an allegedly negligent security company or the person who actually pulled the trigger — would likely lean overwhelmingly toward [the killer],” Tunheim wrote.
Woodbury attorney William Harper, who along with Paul Peterson represents Lee’s estate, said he doesn’t believe the Legislature intended to lump intentional torts into the comparative-fault calculus.
Peterson said that this is just one more step in the process of getting justice for their client. “But it’s an important step,” he added.
Minneapolis attorneys Timothy Thornton and Molly Borg, who represent ADT, could not be reached for comment.
Unsafe house
Lee, 38, and Hawkinson, 47, were shot and killed in September 2006 in their home in West Lakeland Township by Steven Van Keuren, Lee’s ex-boyfriend. Van Keuran cut the phone lines, broke through the basement glass doors and walked past the motion detectors. The alarm system installed the month before allegedly did not go off.
Three of Lee’s children allegedly witnessed the murders.
Van Keuran was subsequently convicted of the murders and sentenced to consecutive life terms. The incident garnered national attention, and was the subject of an episode of “Inside Edition.”
ADT sought a declaratory judgment against the estates of Lee and Hawkinson that its liability is limited to $500, as prescribed in the security system purchase agreement. (ADT has since settled with Hawkinson’s estate.)
Lee’s estate, Lee’s children and trustee Vicki Swenson, proceeding on behalf of Lee’s next of kin, (collectively referred to as the estate) sought to void the terms of the purchase agreement and alleged numerous counterclaims, including fraud, negligent misrepresentation, violations of Minnesota’s consumer protection laws and breach of warranty claims.
The estate contends that the security system’s motion sensors, glass break detectors and cellular radio backup, which was to alert ADT to call police in case the phone lines were cut, didn’t work. It seeks damages for the amounts paid to ADT for ongoing monitoring services, damages for Lee’s death, damages caused directly to the children and injunctive relief preventing ADT from similar conduct in the future.
ADT challenged most of the counterclaims and requested that the court clarify that the jury will be allowed to apportion fault between ADT and Keuren, seeking assurances that it would not be jointly and severally liable for any fault assigned to Van Keuren.
The estate responded that Minnesota’s comparative fault statute does not allow a negligent party’s liability to be reduced based on the fault of a party that committed an intentional tort.
Restatement reliance
Tunheim dismissed claims for injunctive relief and negligence per se, but denied ADT’s request that the consumer protection claims and the claims brought by Lee’s children also be dismissed.
Turning to the apportionment of damages issue, Tunheim noted that the question of whether Minnesota permits application of the comparative fault statute to this situation has not been settled. The judge said that both sides’ views of Minnesota law are “at least modestly plausible.”
The estate’s view would help ensure that tort victims fully recover for their losses and may prevent the negligent party from unjustly minimizing its exposure by preventing the jury from weighing the fault of a party that was merely negligent alongside the fault of a party that intentionally caused harm, Tunheim wrote.
ADT’s position, Tunheim continued, would serve the general purpose of comparative fault statutes by helping ensure that a party’s liability is no greater than its fault and would eliminate the possibility that a party could invoke the comparative fault statute if the third-party tortfeasor is negligent but not if the third party did something wrong intentionally.
Ultimately, Tunheim determined that the court need not resolve the question. Instead, he relied on the Restatement (Third) of Torts, which specifically provides that “a person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to the person.”
Under this view, Tunheim explained, even if a negligent tortfeasor is able to defray some of its liability onto intentional tortfeasors through the comparative fault statute, the negligent tortfeasor remains jointly and severally liable if it was responsible for protecting against the specific type of intentional conduct that occurred.
“[T]his court concludes that Minnesota’s state courts would most likely follow this specific guidance from a source frequently treated as authoritative under Minnesota law,” Tunheim wrote.
‘Strange approach’
St. Paul defense attorney Richard Thomas said that the judge took a “strange approach” in deciding the comparative fault question in this case.
“What I would have expected Tunheim to do is say Minnesota’s comparative fault statute just doesn’t apply to intentional tortfeasors,” he said. If the tortfeasor is 100 percent responsible, then look to ADT and determine if it was negligent in preventing the incident; if it was, it’s on the hook with a right of indemnification against the intentional tortfeasor, Thomas explained. “That’s how I think it works.”
William Mitchell College of Law Professor Michael Steenson, whose 2004 law review article on joint and several liability was quoted in the decision, said the outcome is probably the right one in this situation. It seems “unfair in a way” to let a defendant substantially or completely off the hook just because an intentional tortfeasor was also liable, he said.
But, Steenson continued, difficulties do arise under the comparative fault statute, which with a few exceptions allows only several liability.
“It’s a nice legal question — how do you fit that [conclusion] into the statutory framework?” he said. “There does seem to be that missing link.”
Practitioners said that while it’s an interesting and important issue, it won’t open a floodgate of new litigation.
“I don’t think we need to declare a national emergency over this,” said Thomas.
But some say the Legislature needs to take another look at the comparative fault statute.
Michael Bryant, president of the Minnesota Association for Justice, said that the question of whether the statute applies in situations involving intentional tortfeasors is something the plaintiffs’ bar wanted the Legislature to clarify when the statute was passed in 2003.
“It’s definitely something we’re looking at it [again],” he said. “[We intend to] talk to legislators about cleaning up that statute.”
Prior case addressed a similar scenario
Last year, in a claim against a security company similar to that in ADT Security Services, Inc. v. Vicki Swenson, et al., Hennepin County District Court Judge Lloyd Zimmerman ruled on the question of whether Minnesota law permits application of the comparative fault statute, Minn. Stat. sec. 604.01 (2003), in cases involving intentional torts.
In Cobenais v. MacNeil Environmental, et al., the plaintiffs sued the company that had been hired to provide security and evacuation counseling for the Red Lake School District, alleging that the company’s negligence allowed Jeffrey Weise to enter the school unimpeded and injure and murder several students, teachers and staff in March 2005.
The defendant sought to bring contribution and indemnity claims against Weise’s estate in order not to be held responsible for all damages resulting from the incident. The plaintiff objected, arguing that Minnesota does not allow the fault of a negligent tortfeasor to be compared to the fault of an intentional tortfeasor.
Zimmerman determined that the comparative fault statute cannot be read to embrace the theory that a jury should be allowed, for purposes of comparative fault, to compare negligent and intentional acts.
“If the legislature intended to include intentional acts when comparing fault, it would have certainly included it in the definition of fault at the statute’s inception or with a subsequent amendment especially given the dramatic change in the law it would cause.”
