Tragic Deaths, Survivors, and Mixed Results

by David Cosgrove

The survivors of those who died tragically have netted mixed results in courts around the nation over the last few weeks. Courts evaluated the sufficiency of claims for wrongful death, negligence, and intentional misrepresentation in a variety of contexts.

In Wanzi Qu, et al v. University of Southern California, 2013 WL 6192386. (Cal.App.2 Dist.), the California Court of Appeals sustained the Defendant University’s Motion to Dismiss, but granted the Plaintiff’s leave to file a Third Amended Complaint. The case arises from the high-profile murder of two U.S.C. Graduate students in a parked car in a neighborhood about a mile from the University[1]. The Plaintiff alleged, among other things, that the University failed to provide adequate security in the neighborhood where the murders occurred and that the University made intentional misrepresentations on its website regarding the relative safety of the U.S.C. Campus. The Court found the Complaint’s allegations regarding both the duty and causation elements of the negligence claim to be lacking. As to the intentional misrepresentation claim, the Court found the Petition to be insufficient as to the specificity of the falsity allegation and, again, the element of causation:

“Here, Plaintiffs contend that the decedents would not have attended U.S.C. And would not have been killed if not for the alleged misrepresentations by U.S.C….[T]he alleged reliance it too remote and vague: Plaintiffs do not allege that the decedents would not have ventured into the neighborhood surrounding U.S.C. But for the representations.”

Id at 5[2].

The case of Ohrn v. JPHD Investment Group, LLC, 2013 WL 6175165 (S.D. Ind.) arises from another tragic death of a university student. Renee Ohrn died in an apartment fire near the University of Indiana. Once again, the conduct of a third party played a role in the death. Although the Defendant owned the apartment complex, the residents of the unit in which Ms. Ohrn was visiting at the time of her death had disabled the apartment unit’s smoke detectors. But even though the court ruled that the residents were negligent per se under Indiana law, the court concluded that there were genuine issues of material fact as to whether or not the defendant exercised reasonable care in maintaining the fire alarms in the complex’s common areas. As such, summary judgment for the defendants[3] was precluded.

In The Estate of Roman Gubanov, 2013 WL 6229142 (S.D. Fl.), the Federal District Court granted the Defendant’s Motion to Dismiss, in part, on jurisdictional grounds. Roman was murdered in a hotel room at the Miami Beach Resort & Spa. As was the case in Wanzi Qu, the death was the direct result of the intentional conduct of another. Because the court based its decision on jurisdictional grounds, it took a pass at the opportunity to evaluate the sufficiency of the Plaintiff’s various negligence claims. It did, however, rule that the Florida Wrongful Death Act did not preclude a child of the decedent from recovering even though there was a surviving spouse. Id at 5.

Finally, the surviving wife of a utility company employee that was electrocuted garnered a partial victory in response to the Defendants’ Motion to Dismiss. The employee died from the electrocution and his wife was the administratrix of his estate. The defendants were the employer-company and the employee’s supervisor. The North Carolina Court of Appeals analyzed the trial court’s refusal to dismiss either defendants despite the exclusivity provision of the North Carolina Workers Compensation Act. The Court of Appeals reversed the trial court’s refusal to dismiss the company, but upheld the trial court’s denial of the supervisor’s motion to dismiss. It kept the supervisor in the case because the Estate’s allegation of reckless negligence by the supervisor brought its negligence claim beyond the reach of the Act’s exclusivity provision. According to Judge Stephens:

“Plaintiff offers no basis to believe that Pike Electric was aware of, intended, or was substantially certain that Penland’s actions on that day would result in Decedent’s death. Therefore, given the “narrow” application of the Woodson exemption under Whitaker, we hold that Plaintiff failed to allege “uncontroverted evidence of [Pike Electric's] intentional misconduct… Accordingly, we reverse the trial court’s denial of Pike Electric’s motions to dismiss under Rules 12(b)(1) and 12(b)(6)….”


“Unlike the co-employees in Pendergrass, who may have known about certain dangerous elements of the final inspection machine, Plaintiff alleges the Defendant Penland knowingly directed decedent, an untrained groundman who had previously worked as a truck driver, to climb a power pole and work on highly dangerous and “near energized” power lines, without the necessary training, equipment, or experience…Because our Supreme Court has instructed that an employee may exhibit willful, wanton, and reckless negligence either when he intentionally injures a coworker or when he does so with manifest disregard to the consequences of his actions, see e.g., Pendergrass, 33 N.C. At 238, 424 S.E.2d at 394, we affirm the trial court’s denial of Penland’s motion to dismiss under Rules 12(b)(1) and 12(b)(6).”

Estate of Gary Vaughn, 2013 WL 6073177 (N.C. App.) at pp.10-13.

These cases demonstrate the pitfalls and challenges facing plaintiffs that seek compensation for the tragic death of a loved one. It also demonstrates that a thorough investigation of the case and the drafting of a thorough complaint are critical. If you have lost a loved one due to negligence of another, please reach out to us and let us help you.


[1] The facts of the matter can be found on the Internet and are very disturbing. Two members of a gang were arrested for the murders and there are posts on the Internet, presumably by fellow gang members, justifying the murders.

[2] When I was in law school at the University of Notre Dame, I published two articles in the Journal of College and University Law. If you seek a recent in-depth analysis of university liability for violent incidents perpetrated on or near campus, you may wish to review College and University Liability for Violent Criminal Acts in Volume 34 at p. 319, or Tort-Accident Cases: Traditional Tort Rules in the College or University Setting in Volume 24 at p. 187 of that Journal.

[3] The court so ruled despite Indiana’s common law doctrine of caveat lessee that negates a landlord’s duty “to protect tenants from injuries to (sic) defective conditions on the property once possession and control of the property has been surrendered.” Id at 9. There are, however, at least four exceptions to the application of this doctrine.