The Kickham Comment - Boston Accident Lawyer Blog
In a case that one can only hope will produce civil justice (vs. the criminal justice that’s already been obtained,) the parents of a 16-year-old Massachusetts murder victim have filed a $1 million lawsuit against her killer and his mother.
Joshua C. Whitaker, 23, was sentenced to life in the maximum security prison in Shirley, Massachusetts, after being convicted of the grisly murder of Kelsea L. Owens, who was murdered in Hampden, Massachusetts on August 15 2006. At his trial, Whitaker’s defense lawyer admitted to jurors that Whitaker bludgeoned Owens with pruning shears, a log and a set of dumbbells. Whitaker admitted to a paramedic: “I’m a murderer.” Testimony at the defendant’s murder trial established that Whitaker’s mother, Linda Whitaker, is the person who initially called police to report “a girl being assaulted and missing.”
Now, a wrongful death lawsuit has been filed in Hampden Superior Court against the Whitakers. The suit alleges that Joshua Whitaker had a “long history of violent and deviant behavior,” and centrally, claims that Whitaker’s mother, who he lived with, Linda Whitaker, knew or should have known about her son’s violent personality, and undertaken efforts or measures to monitor or control it. The Owens’ lawsuit alleges that Joshua Whitaker had previously been undergoing psychiatric treatment for violent tendencies, that his mother Linda Whitaker knew this, that she was at home at the time of the murder, and that she should have known her son had not been complying with his psychiatric treatment and medication regimen for a considerable period of time prior to the murder. In legal parlance, the suit alleges that “Linda Whitaker negligently and carelessly failed to properly monitor, supervise and observe Joshua Whitaker, who she knew … had a history of violent and deviant behavior.” The complaint also accuses the Whitakers of “conscious pain and suffering” and infliction of emotional distress.
I’ve previously written about relatives of murder victims filing wrongful death lawsuits against persons who have been accused – but not yet convicted – of the murder of their loved one. A recent example of this in Massachusetts was the Richard Stryker case, in which the family of Dr. Linda Goudey sued another doctor, Dr. Richard Stryker, for murdering her in 1993. The family won that civil suit, and secured a $15 million judgment against Stryker. To secure payment of that jury verdict, I am sure the family attached all the assets in Stryker’s name that they possibly could – and as a physician, Stryker had the means to make payment, even if not in one lump sum. Illustrating the impact of such wrongful death jury verdicts, Stryker was later charged and convicted in 2008 of hatching an elaborate scheme to produce a “new witness” who he tried to use to obtain a new trial on that civil judgment, in the hopes of reversing the judgment and freeing himself from the prior $15 million awarded to her family. Stryker sits in a jail cell now, convicted not of Linda Goudey’s murder, but of the scheme to defraud the court in attempting to procure a new trial on the wrongful death verdict. When he’s released from prison, he’ll still have that unsatisfied (unpaid) judgment on his back, with interest accrued – and everyone involved can feel good about that.
However, the Stryker case, and its famous forbearer, the OJ Simpson wrongful death suit, both involved defendants that had considerable present financial assets, or possible future financial assets, to pay those judgments. I don’t see any such parallel here, in the civil suit against Joshua Whitaker. He’s about 21 years old, and in all likelihood, doesn’t have and never will have a dime to his name. That’s a further frustration for the family of Kelsea Owens, but it illustrates the central focus of wrongful death suits, and that is to financially punish the defendant for his, her or their acts in causing the death of the plaintiff’s loved one. Assuming an optimistic outcome for this family, and assuming they secure the $1 million judgment they seek, it’s doubtful they will ever receive any substantial money.
However, here’s a critical key: The Owens family appears to be basing its suit against the Whitakers on a negligence theory. The suit is basically saying that Linda Whitaker was negligent in not monitoring her son’s medication to control his violent and deviant behavior. Because this is a negligence claim, any homeowners’ policy that Linda Whitaker may have had at the time, may be accessible to pay any judgment awarded. If the Owens family obtains a financial judgment but there is no liability insurance policy available, they could attach her real estate and personal assets, and force the sale of those assets to satisfy part or all of the judgment. But those assets would need to be worth a considerable amount of money to cover the $1 million this suits demands. Unless they can access some type of very valuable assets in the defendant’s name or his mother’s name, or access a homeowners’ liability policy held by him or his mother, collecting on any eventual judgment is going to be a challenge.
This point illustrates the reality that almost all civil litigation that seeks compensation for personal injuries or the death of a loved one, needs to first identify some type of financial assets that can be accessed to pay any eventual judgment. Most of the time, a policy of liability insurance is involved, but other assets can be attached also. Remember, anyone can be sued for negligence, for any kind of injuries or loss that someone has sustained. If you or someone you know needs to consult with an attorney about negligence and liability issues, please call my office anytime.