People remember Charlie Crist as the former Florida governor, but he is no stranger to the law. He was Florida’s attorney general before his governorship and since he lost his Senate bid to Marco Rubio he joined the Central Florida law firm Morgan & Morgan. Now Charlie Crist and Matt Morgan of Morgan & Morgan are making news because they represent Rebecca’s mother, Tricia Norman, in a wrongful death suit. Good luck chuck!
Norman and her lawyers are alleging that 14-year-old Guadalupe Shaw and 13-year-old Katelyn Roman are liable for the death of Rebecca Sedwick. The problem with this allegation is that in order for one to be liable for the wrongful death of another the plaintiff or personal representative, in this case Ms. Norman, has to allege and prove by the preponderance of the evidence the following elements: (1) the existence of a legal duty owed to the decedent (Rebecca); (2) breach of that duty; (3) legal or proximate cause of death was that breach; and (4) consequential damages.
Normally, this would be the time when the author would evaluate each element of wrongful death but that is a complete waste of time since not even one element is present in this case. Frankly speaking, the underlying cause of action in a wrongful death claim is negligence (or it can be an intentional tort). A defendant in a negligence case can only be liable for harm caused by conduct that occurs within the scope of danger attributable to such conduct. A person who creates a dangerous situation may be deemed negligent because he or she violates some duty of care whereby it results in a particular foreseeable harm. Keyword: “foreseeable.”
Nevertheless, the duty of care element of the wrongful death claim is what Norman’s lawyers at Morgan & Morgan were counting on. Let me explain. Generally speaking there exists a common law duty of care whereby everyone has a duty to conduct themselves in an ordinary and reasonable manner as to not cause harm to others. For example refraining from shooting into houses, leaving a fire unattended, or failing to cut down rotted trees on your property, etc. The legislature may also specify a duty to care by statute. Some examples of statutory duties would be to come to a complete stop at a stop sign/light, drive at a certain speed in a school zone, or enclose an underground pool with fencing. In this case, to my knowledge, these two teen girls owed no duty of care in a legal sense to Rebecca as it relates to her suicide.
Going back to Norman’s attorneys at Morgan & Morgan, Matt and Charlie were counting on having the duty of care element in their wrongful death suit be fulfilled by the prosecution, making their civil case relatively easy. When the legislature proscribes conduct by statute, creating a duty of care, and assigns a penalty to the violation of such statutory conduct and a person is subsequently found guilty or pleas guilty to such conduct it translates to a duty and breach of duty in a civil case. For instance, if defendant failed to stop at a stop sign and runs into plaintiff and defendant is subsequently found/adjudicated guilty of running the stop sign, when plaintiff files a civil suit against defendant to recover damages the criminal conviction of defendant for failing to stop will serve to show that defendant had a duty to stop at the stop sign and defendant breached that duty by failing to stop at the stop sign. The only restriction to this criminal to civil translation is that the plaintiff bringing suit under a particular statute has to be within the particular class of people the statute was design to protect and the harm suffered has to be the particular harm the statute was designed to prevent.
As stated in my last post, the aggravated statute was created to protect individuals from bodily harm or death caused by repeated harassment. Since this statute is (somewhat) designed to protect individuals like Rebecca from death or bodily injury the criminal to civil translation would apply. Therefore, had the two teens taken a plea or were subsequently found guilty of aggravated stalking, the only element of the wrongful death claim Norman’s lawyers would have to prove would be the legal or proximate cause element – since the harm/damage would be Rebecca’s suicide. It is my belief that the attorneys at Morgan & Morgan believed that the aggravated stalking charge would have stuck and it would have been relatively easy to win this case not only for Ms. Norman, but for Morgan & Morgan and Charlie Crist of course. But this will not happen.
Even if Charlie and Matt were able to make a case for a wrongful death suit, there are a few legal defenses to wrongful death the defendant teens can raise. The most obvious defense would be suicide since the proximate cause element would not be as a result of the teens’ actions but rather the actual and proximate cause of harm would be as a result of Rebecca’s own action. Should the suicide defense be overcome, a comparative negligence defense on the part of Rebecca or her mother would suffice. The teens could argue that her own decision to visit social networking sites contributed to her own demise and she did not take steps to shield herself from such harassment. Moreover they could likely assert this claim against the mother, Ms. Norman, for enabling her daughter by permitting access to social networking sites.
Next the teens can assert an assumption of the risk defense. The teens only need to show that Rebecca knew of the existence of the risk and voluntarily appreciates its unreasonable character. There is no doubt the teens can demonstrate Rebecca knew full well the consequences of voluntarily maintaining a social networking account and the effect it could or was having on her. Lastly the teens could argue that Rebecca’s suicide was a harm outside the scope of danger attributable to their behavior; rather, that Rebecca’s suicide was unforeseeable. Thus, even if a case were to be made it is likely that the wrongful death suit would likely fail or the award substantially reduced as a matter or law.
Now Matt Morgan has to save face at this point in time because it would be shocking if he does not already know that he has a tough road ahead. It would be unfortunate if Morgan & Morgan took on this case to make money, whether it be by increasing their firm’s notoriety or by attorney’s fees all the while hanging their hats on the popularity of this case and the criminal prosecution of two young teens. Hopefully it is not so and Morgan & Morgan has a legal strategy that is independent of criminal charges. This case is no moneymaker. These school age bullies are broke, not to mention their parents. Who will pay, the school district?
And as for Charlie Crist, what an interesting way to open up a gubernatorial campaign! This will certainly make good campaign material, win or lose. Seriously, who can dislike a man who stands up for victims of bullies? Way to go Charlie, you can stay relevant while you begin to amass your campaign strategy.
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