ADT SECURITY SERVICES, INC., Plaintiff/Counterclaim Defendant, v. VICKI
SELIGER SWENSON, as Personal Representative of the Estate of Teri Lynn Lee
and as Trustee for the Next-of-Kin of Teri Lynn Lee, Decedent; T.M.L.,
T.B.L., T.J.L., and T.M.L., minors, through their Co-Guardians and
Co-Conservators, Erik P. Swenson and Vicki Seliger Swenson,
Defendants/Counterclaimants.
Civil No. 07-2983 (JRT/AJB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
2009 U.S. Dist. LEXIS 88958
September 28, 2009, Decided
September 28, 2009, Filed
COUNSEL: [*1] Timothy R. Thornton and Molly M. Borg, BRIGGS & MORGAN, PA,
Minneapolis, MN; Charles C. Eblen and J. Stan Sexton, SHOOK, HARDY & BACON,
LLP, Kansas City, MO; for plaintiff/counterclaim defendant.
Paul D. Peterson, Lori L. Barton, and William D. Harper, HARPER & PETERSON,
PLLC, Woodbury, MN; for defendants/counterclaimants Vicki Seliger Swenson,
T.M.L., T.B.L., T.J.L., and T.M.L.
JUDGES: JOHN R. TUNHEIM, United States District Judge.
OPINION BY: JOHN R. TUNHEIM
OPINION
MEMORANDUM OPINION AND ORDER
This case arises out of the murders of Terri Lynn Lee ("Lee") and Timothy J.
Hawkinson, Sr. ("Hawkinson"), who were killed in a home that was armed with
an allegedly faulty ADT security system. Following the murders, ADT filed
this action against the estates of Lee and Hawkinson. ADT seeks a
declaratory judgment that its liability is limited to a modest amount
prescribed in the security system purchase agreement. Lee's estate has
alleged eleven counterclaims, a trustee proceeding on behalf of Lee's
next-of-kin has alleged fourteen counterclaims, and Lee's children have
alleged fifteen counterclaims. ADT now moves to dismiss thirty-seven of
these forty counterclaims. ADT also brings a motion for summary judgment
asking that [*2] the Court clarify that the jury will be allowed to
apportion fault between ADT and Steven Van Keuren, the man convicted of Lee
and Hawkinson's murders, and that ADT will not be jointly and severally
liable for any damages corresponding to the fault attributed to Van Keuren.
For the reasons set forth below, ADT's motion for judgment on the pleadings
is granted in part and denied in part, and ADT's motion for summary judgment
is denied.
BACKGROUND
On July 29, 2006, Van Keuren, Lee's ex-boyfriend, assaulted Lee in her home
in Lake Elmo, Minnesota. On August 3, 2006, after Van Keuren had been
arrested, charged, and released on bond, Lee and her current boyfriend,
Hawkinson, purchased an ADT security system to protect Lee's home.
Defendants allege that Lee and Hawkinson informed ADT's sales representative
that they were purchasing the security system in order to protect against
any additional attacks by Van Keuren. Hawkinson, who often stayed at Lee's
home, told the sales agent that he had a license to carry a handgun, and
that his primary concern was having enough notice to prepare to use it.
(Trustee Am. Answer, Docket No. 56, P 49.)
On the day of the sale, the sales agent performed a walk-through [*3] at
Lee's home. The agent agreed that exposed outside phone lines and sliding
glass doors leading outside from Lee's basement were vulnerabilities that
could be exploited by an intruder. (Id., PP 64, 68.) The agent allegedly
indicated that with an ADT security system, if someone cut the exterior
phone lines, an alarm would sound. (Id., PP 73-74.) The agent also allegedly
recommended a sensor that would sound an alarm if the sliding glass door was
broken. (Id., P 65.) Finally, the sales representative recommended motion
detectors that would sound an alarm if an intruder entered Lee's basement.
(Id., P 67.) Defendants contend that Lee and Hawkinson accepted all of the
agent's recommendations, without indicating they were limited to a specific
budget or that they otherwise wished to forego any relevant enhancements to
their security system. (Id., P 70.)
The security system was installed in Lee's home on August 7, 2006.
Defendants allege that ADT's installer did not enable a feature in her
security system that would have monitored the integrity of her telephone
lines. (Id., PP 103-04.) Defendants also allege that when the installer
realized there were not enough glass-break detectors designated [*4] for
Lee's basement, he used the available detectors for windows, and did not
install a glass-break detector over the sliding glass doors. (Id., at P
123.) Finally, defendants allege that Lee and Hawkinson were not informed of
additional motion-sensor options that would have made it possible to arm the
sensors in the basement, but disarm the sensors on the floor of the home
where they were sleeping. (Id., P 133.)
On September 22, 2006, Van Keuren broke into Lee's home again and shot and
killed both Lee and Hawkinson. Van Keuren allegedly carried out the murders
after cutting the phone lines to the home, breaking the sliding glass door
in the basement, and walking past several basement motion detectors. The
alarm system allegedly failed to go off until two of Lee's children fled
through the front door. All four of Lee's children were in the house at the
time of the attack, and three of the children allegedly witnessed their
mother's murder.
In June 2007, following extensive media coverage of these events, ADT filed
this action for declaratory judgment against the estates of Lee and
Hawkinson. In sum, ADT asks the Court to declare that its liability to the
defendant estates is limited to [*5] $ 500, in accordance with a limited
liability provision included in the alarm system purchase agreement. 1
1 ADT has since settled its action against Hawkinson's estate.
Lee's estate filed an Amended Answer and Counterclaim, asserting twelve
causes of action against ADT. The estate sought a declaration voiding the
terms of the Agreement, and also alleged various fraud claims, various
violations of Minnesota's consumer protection laws, and several breach of
warranty claims. In August 2007, the parties stipulated to the addition of
two more defendants: (1) Vicki Swenson, in her capacity as trustee for Lee's
next-of-kin ("trustee"), and (2) Lee's minor children, through their
co-guardians and co-conservators, Erik Swenson and Vicki Swenson. The
trustee defendant then filed an answer containing seventeen counterclaims.
Those claims substantially mirrored those alleged by the estate defendant,
and also added several claims for negligence.
ADT then filed a motion to dismiss ten of the estate's counterclaims and
eight of the trustee's counterclaims. In summary, ADT argued that (1) these
counterclaims failed to meet the heightened pleading standards applicable to
fraud claims, see Fed. R. Civ. P. Rule 9(b), [*6] and, in the alternative,
that (2) defendants' consumer protection counterclaims failed to seek a
public benefit sufficient to allow defendants to pursue those claims
privately, see Minn. Stat. § 8.31, subd. 3a. The Court dismissed
defendants' claims without prejudice, for failure to allege fraud with
sufficient particularity. ADT Sec. Servs., Inc. v. Swenson, No. 07-2983,
2008 U.S. Dist. LEXIS 56969, 2008 WL 2828867 (D. Minn. July 21, 2008). The
Court also granted leave -- without objection from ADT -- for the Lee
children to bring claims of their own.
The estate subsequently filed an amended answer containing eleven
counterclaims, and the trustee and children filed an amended answer
containing fourteen counterclaims brought on behalf of both the trustee and
the children, and one counterclaim for negligent infliction of emotional
distress brought solely by the children. Specifically, the estate alleges
claims for (1) declaratory judgment (concluding that ADT's $ 500 limitation
of liability clause is not enforceable); (2) common law fraud, arising out
of ADT's allegedly misleading explanation of the features of Lee's security
system; (3) misrepresentation by omission, arising out of ADT's alleged
failure to inform [*7] Lee of vulnerabilities in her security system; (4)
negligent misrepresentation, arising out of the factual basis for counts two
and three; (5) violations of federal regulations and state laws mandating
that sales of this nature include a "cooling off period" and that consumers
be given notice of a specific time period when they can cancel the sale, see
16 C.F.R. § 429.1; Minn. Stat. § 325G.08; (6) breach of express
warranties, arising out of ADT's failure to provide a security system that
lived up to ADT's promises; (7) breach of implied warranties, arising out of
ADT's failure to provide an alarm system that satisfied the particular
purpose for which it was purchased, see Minn. Stat. § 325G.18; (8)
violations of Minnesota's consumer fraud act, arising out of the conduct
that led Lee to purchase an inadequate security system, see Minn. Stat. §
325F.69; (9) violations of Minnesota's false statements in advertising act,
arising out of ADT's various inaccurate and inflated descriptions of its
security system, see Minn. Stat. § 325F.67; (10) unlawful trade practices
under Minnesota law, arising out of the conduct referenced above, see Minn.
Stat. § 325D.13; and (11) breach of express limited [*8] warranty, for
ADT's violations of the express written warranty provided to Lee in the
security system's purchase agreement, see Minn. Stat. § 325G.19.
The trustee and children each allege claims for (1) negligence and
negligence per se; (2) gross negligence; (3) negligent design; (4) strict
liability (for alleged faults in the design of the security system); (5)
negligent instruction and failure to warn; (6) strict liability (for alleged
failures in ADT's sales and warning practices); and (7) vicarious liability.
Counts eight through fourteen of the trustee and children's counterclaims
essentially mirror counts five through eleven of the estate's counterclaims.
The Lee children also allege a claim for negligent infliction of emotional
distress.
For relief, defendants seek to recover the amounts that were paid for the
security system and the amounts that were paid for ADT's ongoing monitoring
services; damages arising out of Lee's death; damages caused directly to the
children; and injunctive relief preventing ADT from engaging in similar
fraudulent conduct in the future.
ADT has now brought a second motion to dismiss, challenging all of the
estate's counterclaims, twelve of the fourteen [*9] counterclaims brought
by the trustee, and fourteen of the fifteen counterclaims brought by the
children. The various legal grounds for these challenges are set forth
below. 2
2 The Court notes that the estate, trustee, and children all now support
their counterclaims with several hundred paragraphs of factual allegations,
explaining the basis for their claims in great detail. ADT no longer
challenges the sufficiency of these allegations under Rule 9(b).
ANALYSIS
I. STANDARD OF REVIEW
In reviewing a complaint under Rule 12(b)(6), the Court considers all facts
alleged in the complaint as true, and construes the pleadings in a light
most favorable to the non-moving party. See, e.g., Bhd. of Maint. of Way
Employees v. Burlington N. Santa Fe R.R., 270 F.3d 637, 638 (8th Cir. 2001).
However, the non-moving party must provide "more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007). A plaintiff must state "a claim to relief
that is plausible on its face." Id. at 1974.
II. MINNESOTA'S WRONGFUL DEATH STATUTE
ADT first claims that all of the estate's claims must be dismissed because
[*10] they abated upon Lee's death. Minnesota Statutes section 573.01
governs causes of action brought on behalf of deceased parties. That
provision states:
A cause of action arising out of injury to the person dies with the
person of the party in whose favor it exists, except as provided in section
573.02. All other causes of action by one against another, whether arising
in contract or not, survive to the personal representative of the former and
against those of the latter.
Section 573.02 goes on to explain the availability of actions for wrongful
death: "[w]hen death is caused by the wrongful act or omission of any person
or corporation, the trustee . . . may maintain an action therefore if the
decedent might have maintained an action, had the decedent lived, for an
injury caused by the wrongful act or omission." Under these provisions, it
is clear that the only available legal action arising out of Lee's personal
injuries is a wrongful death action brought by the trustee pursuant to
section 573.02. That provision is the basis for the involvement of Lee's
trustee in this case, and entitles that trustee to seek damages resulting
from Lee's death.
The more difficult question, however, is [*11] whether section 573.01 bars
the claims brought by Lee's estate, which all raise challenges to ADT's
conduct in the sale of its security system to Lee. Dismissal of those claims
would be compelled under the plain language of sections 573.01 and 573.02 if
the estate's claims all "aris[e] out of injury to the person." Put another
way, the question for the Court is "Would [the estate's causes of action]
have arisen had there been no injury to [Lee]?" Webber v. St. Paul City Ry.
Co., 97 F. 140, 142 (8th Cir. 1899). Although this is a close call, the
Court concludes that the estate's claims are sufficiently distinct from the
type of claims barred by section 573.01 to survive a motion to dismiss.
As explained above, it is apparent that Lee's estate cannot use its claims
as a vehicle to seek damages arising out of Lee's death. As the estate
explains, however, its claims are not based on the injuries inflicted by Van
Keuren, and do not seek compensation for those injuries. Rather, the
estate's claims allege, under various legal headings, that ADT perpetrated a
fraud against Lee while Lee was still alive, by deceiving her about the
qualities of her security system. In accordance with this theory, [*12]
Lee's estate has clarified that it is merely seeking to recover her payments
for the security system, rather than any damages arising out of Van Keuren's
attack.
While the Court notes that these concessions essentially reduce the estate's
340-paragraph Answer and Counterclaim to an action seeking less than $
3,000, (see Estate's Am. Answer, Docket No. 55, P 90), the Court agrees that
such claims technically survive to Lee's estate pursuant to section 573.01.
In short, if ADT's alleged fraudulent sales and installation practices
occurred, that fraud was manifest while Lee was still alive. In other words,
if Van Keuren had entered Lee's home on the night of her murder and then
left without injuring her -- or if Lee had otherwise discovered the alleged
faults in the security system before his intrusion -- she may well have
filed an action alleging the same claims (and seeking the same damages) now
sought by the estate, without the presence of physical injuries of any kind.
In short, in light of the seriousness of any possible improprieties in the
sale of home security systems -- particularly in the circumstances present
here, where the decedent correctly perceived that she faced a grave, [*13]
imminent threat -- claims concerning the sale and installation alone plainly
would have been significant enough to support a stand-alone lawsuit, wholly
apart from Lee's death. Accordingly, Lee's various challenges to ADT's
conduct in forming the sales contract properly survive to her estate
pursuant to section 573.01. See Minn. Stat. § 573.01 (contemplating the
survival of claims sounding in contract). Accordingly, ADT's motion to
dismiss is denied as to the estate's pursuit of the purchase price and
monitoring fees paid by Lee for the allegedly faulty security system. 3
3 The Court adds that at the hearing, ADT suggested that Hawkinson paid
these expenses. If that is indeed the case, then the estate's claims would
appear to be moot. This issue extends beyond the pleadings, however, and is
not something this Court is free to take up in the context of a motion to
dismiss.
III. INJUNCTIVE RELIEF
Both the trustee and the estate bring claims for injunctive relief, seeking
to restrict ADT from engaging in similar conduct in the future. The Court
agrees with ADT that these requests must be dismissed. The general rule is
that this "equitable remedy is unavailable absent a showing of irreparable
[*14] injury, a requirement that cannot be met where there is no showing of
any real or immediate threat that the plaintiff will be wronged again." City
of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S. Ct. 1660, 75 L. Ed. 2d 675
(1983); see also Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985)
(explaining that a prisoner's claim for injunctive relief to improve prison
conditions was moot where he was no longer subject to those conditions).
Here, the estate and trustee have brought claims in the name of Lee, who is
now deceased, and cannot suffer any further harm from ADT's conduct in the
sale and installation of its security systems. Accordingly, ADT's motion is
granted to the extent that it seeks to prevent the estate and trustee from
seeking injunctive relief.
IV. MINNESOTA'S PRIVATE ATTORNEY GENERAL STATUTE
ADT next raises an argument that this Court dealt with at length in its
prior Order. ADT argues that neither the trustee nor the estate can assert
claims under Minnesota's consumer protection statutes because they have
failed to seek relief that would provide a public benefit. See Ly v. Nystrom,
615 N.W.2d 302, 313 (Minn. 2000) (explaining that the private Attorney
General Statute "applies only to those claimants [*15] who demonstrate that
their cause of action benefits the public"). ADT notes that neither party
can seek a public benefit by seeking injunctive relief, for the reasons
given above. As to the trustee, ADT adds that Minnesota's wrongful death
statute states that "[t]he recovery in [a wrongful death] action is the
amount the jury deems fair and just in reference to the pecuniary loss
resulting from the death, and shall be for the exclusive benefit of the
surviving spouse and next of kin[.]" Minn. Stat. § 573.02, subd. 1
(emphasis added). ADT contends that this statute bars the trustee from
bringing claims that could plausibly benefit the public.
As an initial matter, the Court explained in its prior Order that it does
not agree that claimants must seek equitable relief in order to adequately
seek a "public benefit" under the Minnesota Private Attorney General
statute. See Swenson, No. 07-2983, 2008 U.S. Dist. LEXIS 56969, 2008 WL
2828867, at *8 ("The Court first notes that . . . [it] is not persuaded that
Minnesota's Private Attorney General Statute incorporates the bright-line
rule suggested by [ADT], requiring that equitable relief must be requested
in order for a claimant to seek a 'public benefit.'"); see also Collins v.
Minn. Sch. of Bus., Inc., 655 N.W.2d 320, 329-30 (Minn. 2003) [*16]
(concluding that plaintiffs had satisfied the public benefit requirement
without alleging injunctive relief). The Court need not repeat that
reasoning here. 4 Accordingly, the Court concludes that the limitation on
either the estate or trustee bringing requests for injunctive relief does
not preclude either party from satisfying the public benefit requirement.
4 The Court merely adds that to the extent that Tuttle v. Lorillard
Tobacco Co., No. 99-1550, 2003 U.S. Dist. LEXIS 3721, 2003 WL 1571584 (D.
Minn. Mar. 3, 2003) -- an unpublished decision from this district --
suggests otherwise, it is distinguishable on its facts. In Tuttle, the court
considered a wrongful death action brought on behalf of a deceased tobacco
user, alleging that a tobacco company had failed to adequately warn its
customers about the negative health effects likely to result from tobacco
use. The court concluded that the action did not seek a sufficient public
benefit for the plaintiff to invoke Minnesota's Private Attorney General
statute. The court noted, however, that "[t]o the extent that Plaintiff
wants to warn the public of the dangers of smokeless tobacco, the
FDA-required warnings already accomplish that purpose." 2003 U.S. Dist.
LEXIS 3721, 2003 WL 1571584, at *6. [*17] In other words, the Tuttle
lawsuit was not likely to change the manner in which tobacco is marketed,
because the practices at issue in the lawsuit had already been corrected.
Here, however, there are no concrete indications that the types of improper
sales and installation practices alleged by defendants have stopped.
Moreover, Tuttle was decided on summary judgment, after the parties and the
Court had had an opportunity to evaluate the action's relationship to the
public interest with reference to a full summary judgment record. Here, the
Court addresses the public benefit requirement in the context of a motion to
dismiss, without a full evidentiary record, and without an opportunity to
fully evaluate any evidence bearing on the relationship between the events
of this case and ADT's broader practices.
As to whether defendants' claims for private relief adequately seek a public
benefit, the Court concludes that defendants have now included adequate
allegations in their pleadings for their consumer protection claims to
survive a motion to dismiss. 5 For example, both the estate and the trustee
now allege that ADT provides its salespeople with instructions for how to
respond to concerns [*18] about intruders cutting their phone lines. Those
instructions allegedly advise salespeople to tell customers that if an
intruder "goes around to the place where the phone line comes into the house
and cuts the line . . . [a]t that point, your alarm will make a loud noise
(assuming your system is armed)." (Estate's Am. Answer, Docket No. 55, P 73;
Trustee's Am. Answer, Docket No. 56, P 73.) Both defendants allege that
these general assurances were not reflected in ADT's actual approach to
selling and installing security systems, as the telephone line monitoring
feature was not included in Lee's system despite her interest in such a
feature, and, even more significantly, despite her apparent belief that she
had purchased such a feature. (See Trustee's Am. Answer, Docket No. 56, P
153 (alleging that Lee told her sister that the "system would . . . produce
a loud audible alarm if the telephone lines were cut").) The inclusion of
this advice in ADT's internal sales manual suggests that the types of
assurances received by Lee are received throughout the country. While the
Court will be open to revisiting this issue at summary judgment if the
evidence demonstrates that the improprieties here [*19] were isolated and
unconnected to ADT's national sales and installation practices, the Court
fails to see any basis for making that judgment under Rule 12.
5 The Court notes that ADT has not made any public benefit arguments that
are specific to any particular consumer protection claims brought by
defendants. Rather, ADT has merely argued that the claims as a whole fail to
seek a public benefit, largely based on the legal arguments addressed above.
Accordingly, the Court has taken this approach to assessing defendants'
claims as well.
In sum, in light of the Court's inability to conclusively assess the
relationship between this action and ADT's general sales practices in the
context of a motion to dismiss, as well as the fact that customers
nationwide rely on ADT's security systems for protection, the Court finds
that -- at least for the purposes of a motion under Rule 12(b)(6) --
defendants' litigation has sufficient potential to benefit the public to
support invocation of the Private Attorney General statute. See Collins v.
Minn. Sch. of Bus., Inc., 636 N.W.2d 816, 820-21 (Minn. Ct. App. 2001),
aff'd, 655 N.W.2d 320 (noting that "federal courts have consistently held
that the prevention [*20] of false or misleading advertising is a public
benefit," and permitting invocation of the Minnesota Private Attorney
General statute without noting any request for injunctive relief); see also
Swenson, 2008 U.S. Dist. LEXIS 56969, 2008 WL 2828867, at *5-8. Accordingly,
ADT's motion to dismiss is denied to the extent that it seeks to dismiss
those claims.
IV. NEGLIGENCE CLAIMS 6
6 ADT initially moved to dismiss the rest of the trustee's negligence
claims as well, but withdrew this portion of its motion at the hearing.
The trustee and children allege a claim for negligence per se. In certain
circumstances under Minnesota law, the violation of a statute may constitute
negligence per se. Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981). For
this doctrine to apply, the statute's purpose must be (1) "to protect a
class of persons which includes the one whose interest is invaded;" (2) "to
protect the particular interest which is invaded;" (3) "to protect that
interest against the kind of harm that has resulted;" and (4) "to protect
that interest against the particular hazard from which the harm results."
Scott v. Indep. Sch. Dist. 709, 256 N.W.2d 485, 488 (Minn. 1977) (internal
quotation marks omitted).
ADT argues that [*21] this claim must be dismissed because defendants have
failed to indicate which statute or regulation was violated. The trustee and
the Lee children respond that the question of what was violated is a proper
subject of expert testimony, and that they should be allowed to maintain
this claim until they have had an opportunity to consult with an expert.
The Court agrees that the trustee and children's pleadings, in their current
form, are inadequate. See Holler v. Cinemark USA, Inc., 185 F. Supp. 2d
1242, 1243-44 (D. Kan. 2002). In short, the requirement that a party plead
the violated statute or rule in her complaint is not an onerous one, and the
specifics of such a violation are reasonably within the grasp of lawyers
unaided by experts. Accordingly, the trustee and children's claim for
negligence per se is dismissed. The Court finds it appropriate, however, to
allow the trustee and children an opportunity to amend this claim. While
their complaint does not specify what statute or regulation they are relying
on, they do point to several industry regulations in other sections of their
complaint, and now suggest that these provisions are likely to form at least
part of the basis for their [*22] claim. (See Trustee's Am. Answer, Docket
No. 56, PP 108-16.) If the trustee and children wish to remedy this pleading
deficiency, they must file an Amended Counterclaim within twenty days of the
date of this Order. The Court reiterates that if the trustee and children
wish to maintain this claim, this Amended Counterclaim must specifically
state -- with reference to specific, numbered provisions -- which regulation
or statute they are relying on.
V. CLAIMS BY LEE'S CHILDREN
ADT also argues that all of the claims alleged by Lee's children should be
dismissed, with the exception of their claim for negligent infliction of
emotional distress, because the children have failed to allege any damages.
To the extent that ADT is liable for damages arising out of Lee's death, ADT
argues that these damages are properly sought by the trustee. The children
reply that they -- personally, and distinct from their mother -- suffered
damages from each and every one of the alleged claims, as a result of the
trauma that they experienced on the night of Van Keuren's attack. As noted
above, three of the four children allegedly witnessed the murders.
The Court agrees that while the children will of course have [*23] to
ultimately prove any alleged damages with evidence, their allegations are
sufficient to survive a motion to dismiss. While the Lee children have not
separately enumerated their damages under every individual count, ADT is
plainly on notice that for each of their claims, the children will argue
that they were severely traumatized on the night of the murders, and
suffered damages from that trauma. Accordingly, ADT's motion to dismiss is
denied to the extent that it challenges the children's identification of
their damages. 7
7 ADT also briefly argues that all of the children's claims except for
their negligent infliction of emotional distress claim arise out Lee's death
(or out of contractual or common law duties owed solely to Lee), and are
therefore barred by the wrongful death statute. The Court, however, finds it
improper to resolve this issue here. ADT initially sought a ruling in this
motion on the nature and extent of any non-contractual duties it assumed in
the course of its interactions with Lee's family. ADT conceded at the
hearing, however, that this issue was best reserved until the parties had a
full evidentiary record. Because the question of the nature of ADT's
non-contractual [*24] duties is interwoven with the question of whether ADT
may have assumed independent duties to Lee's children (who were allegedly
known to ADT's employees), the Court finds that it is appropriate to reserve
this issue for summary judgment as well.
VI. ADT'S MOTION CONCERNING THE COMPARATIVE FAULT OF STEVE VAN KEUREN
ADT next asks the Court to clarify how damages would be presented to the
jury. In short, ADT would like the Court to ask the jury to apportion fault
between ADT and Van Keuren, and wants assurances that it will not be jointly
and severally liable for any fault (and consequent damages) assigned to Van
Keuren. Defendants respond that Minnesota's comparative fault statute does
not allow the liability of a negligent party to be reduced based on the
fault of a party that committed an intentional tort. The parties agree that
this question has not been settled by Minnesota's courts. See also Michael
K. Steenson, Joint and Several Liability in Minnesota: The 2003 Model, 30
Wm. Mitchell L. Rev. 845, 878-81 (2004) (explaining that this issue has not
been conclusively resolved).
As background, the Court notes that both parties' views are at least
modestly plausible, and that both are able [*25] to point to states
elsewhere that have adopted their view. Defendants' view would help ensure
that tort victims fully recover for their losses. To the extent that a
negligent party believes it shares the blame with a third party who
committed an intentional tort, the burden would be on the negligent party to
bring a claim against that third party for contribution. In other words, the
risk that the third party is insolvent would be borne by the negligent
party, instead of the victim. Defendants' view also 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. See, e.g., Veazey v.
Elmwood Plantation Assocs., Ltd., 650 So. 2d 712, 719 (La. 1994) (suggesting
that "any rational juror will apportion the lion's share of the fault to the
intentional tortfeasor when instructed to compare the fault of a negligent
tortfeasor and an intentional tortfeasor").
ADT's position, on the other hand, would serve the general purposes of
comparative fault statutes, by helping ensure that a party's liability is no
greater than its fault. It also [*26] would eliminate the odd 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. See Steenson, 30 Wm. Mitchell L. Rev. at 878 (noting the
policy argument that a defendant should be no worse off when a co-defendant
has committed an intentional tort than when a co-defendant has been
negligent); see also Rodenburg v. Fargo-Moorhead Y.M.C.A., 2001 ND 139, 632
N.W.2d 407, 416-18 (N.D. 2001) (interpreting a North Dakota statute to
require the adoption of the view advanced by ADT). On ADT's view, the risk
of insolvency of the third party would be borne by the tort victim.
While both parties point to specific Minnesota statutory provisions that
support their respective views, the Court agrees that these provisions imply
different results, and thus -- when read alongside one another -- do not
resolve this issue. ADT relies heavily on section 604.02, which includes a
specific provision on joint liability. That provision, as revised in 2003,
states:
When two or more persons are severally liable, contributions to awards
shall be in proportion to the percentage of fault attributable to each,
except [*27] that the following persons are jointly and severally liable
for the whole award:
(1) a person whose fault is greater than 50 percent;
(2) two or more persons who act in a common scheme or plan that results in
injury; [or]
(3) a person who commits an intentional tort.
ADT argues that by mentioning intentional torts, this provision clearly
implies that such torts can be considered as part of a comparative fault
analysis. ADT argues that while the provision clearly indicates that the
intentional tortfeasor cannot defray any of his liability onto another
tortfeasor, the provision does not prevent the negligent party from
defraying liability onto the intentional tortfeasor. On this view, the only
way that ADT could be liable for the entire award would be if their fault
was greater than 50%, or if Van Keuren and ADT were a part of the same
scheme or plan.
Defendants, on the other hand, rely on section 604.01, subd. 1a, which
expressly defines "fault." That provision states:
"Fault" includes acts or omissions that are in any measure negligent or
reckless toward the person or property of the actor or others, or that
subject a person to strict tort liability. The term also includes breach of
warranty, [*28] unreasonable assumption of risk, misuse of a product and
unreasonable failure to avoid an injury or to mitigate damages, and the
defense of complicity under section 340A.801.
In short, this definition does not mention intentional torts. See Steenson,
30 Wm. Mitchell L. Rev. at 879-80 (explaining that in order to reach the
position advanced by ADT, "[t]he language of the definition of 'fault' . . .
would have to be ignored"). This omission is consistent with the view that
intentional torts are simply out of the equation for comparative fault
purposes.
Ultimately, however, the Court need not resolve whether Minnesota law
generally permits the application of the comparative fault statute -- and,
in turn, permits a substantial reduction in the exposure of negligent
tortfeasors -- in cases involving intentional torts. Even if ADT is correct
about that general proposition, the Court finds that on the specific facts
alleged here, it cannot yet conclude as a matter of law that ADT would not
be jointly and severally liable for the harm caused by Van Keuren.
While the Court does not believe that Minnesota's statutes resolve this
question, it does not believe that it is writing on an entirely clean [*29]
slate. The Restatement (Third) of Torts -- a source frequently relied on by
Minnesota's courts in other contexts, see Duxbury v. Spex Feeds, Inc., 681
N.W.2d 380, 387 (Minn. Ct. App. 2004) ("Since its publication, we have
relied on Restatement (Third) of Torts when considering the law of products
liability.") -- specifically provides:
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.
Restatement (Third) of Torts: Apportionment of Liability § 14. On this
view, even if there are cases where 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
in cases where it was responsible for protecting against the specific type
of intentional conduct that ultimately occurred. In light of the lack of
specific guidance from Minnesota's statutes on this issue, the Court
concludes that Minnesota's state courts [*30] would most likely follow this
specific guidance from a source frequently treated as authoritative under
Minnesota law.
The Court adds that the facts of this case underscore the relevance and
fairness of this approach. The core of defendants' claims against ADT is
that ADT promised to provide a security system that would provide certain
protections against intruders, and failed to do so. Defendants allege that
as a direct consequence of these failures, Lee was left vulnerable to Van
Keuren's attack. 8 In those circumstances, allowing ADT to invoke
comparative fault may well be to allow ADT to shirk the precise duty that it
assumed, and possibly 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 Van Keuren. Cf. Veazey,
650 So.2d at 719. In those circumstances, the Court concludes that it is
likely that Minnesota would adopt the view advanced in the Restatement, and
would prevent ADT from limiting its exposure to liability to the extent of
its fault. Accordingly, ADT's motion for summary judgment [*31] as to the
comparative fault of Van Keuren is denied.
8 Defendants add in their pleadings that Hawkinson had a license to carry
a handgun, and had one within arm's reach at the time of the murders. In
other words, it is not inconceivable that the sounding of an alarm could
have changed the tragic results of Van Keuren's attack.
ORDER
Based on the foregoing, all the files, records, and proceedings herein, IT
IS HEREBY ORDERED that:
1. ADT's Amended Motion for Judgment on the Pleadings of Certain Claims
[Docket No. 58] is GRANTED in part and DENIED in part as follows:
a. The motion is GRANTED as to the estate and trustee's requests for
injunctive relief. Those requests are DISMISSED.
b. The motion is DENIED as to the estate's efforts to recover the purchase
price and monitoring fees paid to ADT by Lee.
c. The motion is DENIED to the extent that it seeks dismissal of defendants'
claims under Minnesota's Private Attorney General statute.
d. The motion is GRANTED as to the trustee's claim for negligence per se.
That claim is DISMISSED without prejudice. Any amendment to this claim must
be filed within twenty days of the date of this Order.
e. The motion is DENIED to the extent that it seeks dismissal [*32] of the
claims brought by Lee's children.
2. ADT's Motion for Summary Judgment on the Comparative Fault of Steve Van
Keuren [Docket No. 62] is DENIED.
DATED: September 28, 2009
at Minneapolis, Minnesota.
/s/ John R. Tunheim
JOHN R. TUNHEIM
United States District Judge