AFTER 31 YRS, WRONGFUL DEATH SUIT MEANS JUSTICE FOR VICTIM’S FAMILY

May 1, 2012

The victim was 35 years old when she died of a gunshot wound in 1981. Her children were 15, 14 and 12. The three, now in their 40′s, believe their mother’s boyfriend at the time, a former police officer, was responsible for her death, but the criminal justice system disagreed. In 2008, a jury acquitted the boyfriend of second-degree murder. So last year the family turned to the civil courts for justice by filing a wrongful death claim against the boyfriend.

There is no argument that the case is unusual: Seldom is a suspect charged some 25 years after a crime is committed. It is not every day, though, that a woman’s death gets tied up with a political campaign, either. But because the suspect was a friend of the city’s police chief — this was not in Oregon — the city’s failure to charge anyone in the crime turned into a hot issue when the chief ran for sheriff in 2006.

The family was shocked when the boyfriend was acquitted, but the defense had swayed the jury with its argument that the victim had committed suicide. The gun went off as the victim and her boyfriend struggled. No one else was in the room with them. But the family knew this wasn’t the first time the couple had fought, and they continue to believe he was the one who pulled the trigger.

And verdict or no verdict, the family still feels the loss. The victim was a single mother; her children were the pride and joy of her life, according to friends. When she died, her children lost her love and support, and they lost her income. Their best hope of compensation was a civil suit, a wrongful death suit, against their mother’s boyfriend.

This case caught our attention for a number of reasons. First, the victim — a 35-year-old single mother — died 31 years ago. Second, criminal charges were filed 25 years after the victim’s death. And, especially for our purposes here, the family filed a wrongful death action against the victim’s boyfriend just last year.

It’s not unheard of for criminal charges and a civil action to be filed against the same person with regard to the same incident. O.J. Simpson, for example, was acquitted of Ronald Goldman’s murder, but Goldman’s family won a sizeable civil judgment against the ex-football player.

But don’t think that wrongful death actions are limited to suspected murders. In Oregon, for example, a victim’s family may file such a claim if they believe the defendant’s wrongful act or omission caused the victim’s death. The family member could have died in an accident caused by a reckless driver or after surgery performed by an inexperienced or unskilled doctor. It must only be a wrongful act or omission.

This case looked fairly simple to the family at first, but it wasn’t. In fact, it still isn’t.

The judge hearing the wrongful death case entered a default judgment when the defendant failed to respond to the summons and complaint and failed to appear at a hearing. The defendant now claims he heard through a friend that he had been ordered to pay $6 million to the children, and that he had not known of the lawsuit until after the default judgment had been entered.

But the defendant had not answered the summons and complaint, nor had he shown up for the hearing. The court entered a default judgment of $6 million — $2 million for each of the victim’s children — and the family thought they could collect the award and that would be the end of it. A few weeks ago, though, they found themselves back in court.

Law students will tell you that civil procedure can be dry. Practicing lawyers will tell you that cases rise and fall on procedural matters. The defendant is claiming that he never received the summons and complaint.

The plaintiff, however, says the process server visited the defendant’s home a few times. The plaintiffs’ attorney mailed a copy of the summons and complaint to the defendant’s home, too. And, the plaintiffs’ attorney published a notice and even notified the defendant’s attorney about the claim.

At the hearing, the judge made just one comment: She said she thought a reasonable person would find the notice to the defendant’s attorney to be proper. Whether the defendant’s claim has merit will be decided by the judge over the next couple of weeks. In the meantime, the family adds weeks to the 31 years they have waited for justice.

Source: Pioneer Press, “Barbara Winn case: Foster had to be aware of suit, lawyer argues,” Richard Chin, May 30, 2012

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