Tampa Injury Lawyer : A jury surprise? Part Two

By Nicholas J. Dorsten, Esq.

Just a few days after publishing the first part of the story, the St. Petersburg Times did a follow up piece on the recent court trial where the jury found the victim partially responsible in her wrongful death suit against her apartment complex.

NEW PORT RICHEY — The victim in a wrongful death case spent an evening drinking wine with a neighbor and ended up murdered in her apartment.

The criminal courts dealt quickly with the man who killed her. Adam Calcote, the defendant, went to trial, was convicted and is serving life in prison.

But in the civil court system, where issues of justice are more nuanced and subjective, a jury this week decided that some of the responsibility for the victim's wrongful death fell at her own feet.

The victim shares the blame for her murder.

The verdict stunned the victim's mother, who had sued Carlton Arms of Magnolia Valley, alleging lax security at the New Port Richey apartment complex where the wrongful death victim was killed.

"Common sense tells you that she wasn't at fault," the mother said. "She's sitting in her own place. Does that mean you can't sit in your own house and do what you want?"

• • •

The victim, an elementary special education teacher, lived quietly. She didn't party or have a boyfriend. Her devotion was to her students.

The defendant, later convicted of her murder, stayed next door with his girlfriend, who was out of town on Dec. 4, 2004. He and the victim talked for hours that night outside on the balcony. He drank beer; she drank wine. But when they went inside, the defendant wanted sex and turned violent. The wrongful death victim, 27, died of suffocation, smothered with a pillow.

From a liability standpoint, the defendant's role is a given. But he's indigent and locked up, so there's no purpose in suing him, according to most legal experts.

The victim's mother filed a wrongful death lawsuit against Carlton Arms, saying it had no policy in place to detect that the defendant, who was using an assumed name and wanted on an arson warrant, was living there. He was not on his girlfriend's lease and had not been screened like the other tenants, yet he came and went freely, past the guard house at the entrance, for months.

The personal injury attorney, told the jury that the defendant was a "piggybacker" — someone who moved in with a resident but avoided the screening process. He said that such people are a problem at apartment complexes and that Carlton Arms had no means of dealing with them.

Carlton Arms' insurance defense attorney, portrayed the killer as his girlfriend's invited guest who had no criminal record. His crime was unforeseeable he claimed.

The defense also asked the jury to consider the victim's drinking that night. Jurors saw a toxicologist's report showing her blood-alcohol level was between 0.153 and 0.17 at the time of her death. In Florida, a blood-alcohol level of .08 and above is considered to be legally under the influence of alcohol and you can be arrested for drunk driving or DUI if you had that level while driving!

If a plaintiff's own behavior — in this case, the victim's drinking — is more than half to blame for what happened, then the defendant isn't liable for any damages.

Over the personal injury attorney objection, the judge allowed a question about her intoxication to be included on the verdict form that jurors would fill out.

• • •

The form first asked whether Carlton Arms was negligent, and whether that negligence was a legal cause of the victim's wrongful death.

The jury said yes.

They went on to the next question: "Was the victim under the influence of alcohol to the extent that her normal faculties were impaired or did she have a blood-alcohol level of 0.08 or higher, and as a result of the influence of such alcohol, was the victim more than 50 percent responsible for her death?"

Their answer again: yes. Carlton Arms was off the hook.

"Essentially what they're doing is they're saying imagine a chain of events. Without the negligence of the property owners, this woman wouldn't have been killed. That showed that the property owners' negligence must have been a cause of her death," a local law professor said. "But even though that's true, in between the property owner's negligence and her death was her own negligence. That essentially intervened between the property owner's negligence and her death. . . . She put herself in a position that even reasonable security couldn't keep her secure from."

The jury was made up of four men and two women, ranging in age from 42 to 57. Two of the jurors declined to comment to a reporter. The other four did not respond to telephone messages.

But they gave a little more insight into their thinking by mistakenly filling out the rest of the verdict form. In the space for specifying each party's share of the blame, they gave 33 percent to Carlton Arms and 67 percent to the wrongful death victim.

So if the jury was being asked to divvy up responsibility, why wasn't the actual murder defendant included?

"The criminal trial has already sorted all that out," the professor said. "The case isn't about the murder. As between her and the landlord, they're saying she's more responsible than the landlord."

The Tampa personal injury lawyer has vowed to appeal the verdict, and he's confident he will prevail. He doesn't think the victim's intoxication should have been a question for the jury.

"The victim did nothing except sit on her porch and drink wine," he said. "She had every reason to believe he was an okay guy. . . . She had no reason to know he was an arsonist or a rapist. For all she knew he was on the lease and had passed scrutiny.

"It had nothing to do with the negligence of Carlton Arms," the personal injury attorney maintained.

The personal injury lawyer says the victim was likely drugged. He brought in a jail witness who said the defendant told him he had drugged a woman, though there was no evidence of that in the victim's own toxicology report.

The mother, who found her daughter's body after the attack almost six years ago, doubts that the victim was drunk or that she let the defendant in. It made no sense, given her daughter's quiet and cautious ways.

Now this, a verdict that vindicates Carlton Arms and blames the victim!


Do you or a loved one need the services of a personal injury attorney as a result of a car accident or wrongful death? Then contact the Clearwater based office of Blake & Dorsten, P.A. for a free consultation!

For more information, or to speak directly with an experienced Personal Injury lawyer, please contact BLAKE & DORSTEN, P.A. at 727.286.6141 or email the attorneys with your questions at: info@blakedorstenlaw.com