Monday, October 22, 2007
County Not Liable Where Employee Killed Husband With Drugs
By KENNETH OFGANG, Staff Writer
San Diego County is not liable to the family of a murder victim whose wife is serving a life sentence for poisoning him with drugs she allegedly stole from her employer, the county medical examiner, the Fourth District Court of Appeal ruled Friday.
The court’s Div. One overturned a judgment in favor of the parents of Greg de Villers. A San Diego Superior Court jury determined last year that the county was negligent in hiring and retaining Kristin Rossum as a toxicologist, despite her history of drug use and juvenile delinquency, and in enabling her to obtain fentanyl, the drug which toxicology tests determined to have killed her husband.
The jury returned a verdict finding the county 25 percent responsible and Rossum 75 percent responsible for $6 million in damages resulting from Greg de Villers’ death. Jurors also awarded $100 million in punitive damages against Rossum.
Judge John S. Meyer cut the punitive damages to $10 million, but denied the county’s motion for judgment notwithstanding the verdict.
That motion should have been granted, Justice Alex McDonald wrote for the panel, because the de Villerses failed to establish that any statutory exception to sovereign immunity supported their claims.
Greg De Villers’ death in 2001, and Rossum’s first degree murder conviction the following year, have been the subject of worldwide attention in the print and electronic media, particularly because de Villers’ body was found covered in rose petals. The discovery was reminiscent of a scene in “American Beauty,” which was said to be a favorite movie of Rossum’s.
Prosecutors theorized that Rossum, who acknowledged that her marriage was failing, wanted her 26-year-old husband dead in order to prevent him from exposing her affair with her supervisor, Michael Robertson, as well as the fact that she had resumed using methamphetamine after having quit prior to going to work for the county while as student in 1997.
They told jurors that Rossum committed the murder with the aid of her lover, Michael Robertson, but have not charged Robertson—who was fired and returned to his native Australia a month before Rossum was arrested—with a crime.
Life Without Parole
She is currently serving a life sentence without possibility of parole, to which she was sentenced after jurors rejected her claim her husband must have committed suicide over her affair and the impending breakup of their marriage, and found her guilty of premeditated murder with a special circumstance of murder by poisoning.
Prosecutors, citing a series of audits conducted after it was determined that de Villers was poisoned, said Rossum stole methamphetamine, fentanyl, and other from her lab. Her attorneys said the lab had such lax security that anyone could have stolen the drugs, even though the missing substances were linked specifically to cases handled by Rossum.
Jurors in the civil case agreed that the Office of the Medical Examiner violated federal standards for the security of controlled substances, but McDonald said those standards are too general to support a finding of breach of mandatory duties, which would permit the county to be held liable under Government Code Sec. 815.6.
As an analytical laboratory using controlled substances in order to conduct tests for civil and law enforcement purposes, the justice explained, Rossum’s employer was required by the regulations to “provide effective controls to guard against theft and diversion” of drugs, including “key control systems and/or combination lock control systems” and to supervise “employees having access to...storage areas.”
McDonald noted that while a plaintiff’s expert testified that the county’s security measures were inadequate, he conceded that the rules only supplied “general guidelines,” afforded discretion to the laboratory, and did not mandate the measures which the expert said would have prevented Rossum from stealing, such as limiting keys to two people and having a witness monitoring when any toxicologist accessed drugs.
A rule which “grants latitude on how best to achieve [its] goals and does not describe discrete acts that must be performed” does not provide a basis for liability under Sec. 815.6, the justice concluded.
Nor, McDonald said, could the county be held liable on a theory of negligent hiring and/or retention.
The plaintiffs contended that the county’s failure to subject Rossum to a drug test, to investigate her background and discover her past drug use and juvenile court record for being under the influence of drugs, and to discover her thefts of drugs until after de Villers was killed were legal causes of his death.
McDonald, however, said the county could not be held liable because its employees had no legal duty to protect de Villers from his wife in the absence of actual knowledge that she intended to harm him.
The justice cited Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal. 4th 1138, which held that a day care provider could not be held responsible for the unforeseen act of a deranged man who deliberately drove through a fence and killed two children on a playground.
While the Court of Appeal said the deaths might have been prevented had the defendants erected a sturdier fence or located the playground farther from the street, the high court held that a duty to protect occupants of land from intervening third-party criminal acts could only be imposed if the specific type of criminal act was sufficiently foreseeable to outweigh the costs of imposing such a duty.
McDonald rejected the contention that liability on the part of the county could be predicated upon Robertson’s role in the case.
“Plaintiffs appear to suggest that because the jury found Robertson was acting ‘within the course and scope of his employment with respect to the manner in which he supervised’ Rossum, County can be held vicariously liable for de Villers’s death. Noticeably absent from this argument is any discussion of why Robertson would be liable for de Villers’s death. If Robertson was merely negligent in failing to anticipate and prevent Rossum’s crime, Wiener would insulate him from liability. However, if Robertson’s liability arose because he was a coconspirator or aider and abettor, then the jury’s finding that he was acting in the scope of his employment would lack evidentiary support.”
The case is de Villers v. County of San Diego, 07 S.O.S. 6291.
Copyright 2007, Metropolitan News Company