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Jurors in civil case say murder victim partly to blame for her own death

NEW PORT RICHEY — Kimberly Delancey spent an evening drinking wine with a neighbor and ended up murdered in her apartment.

The criminal courts dealt quickly with the man who killed her. Adam Calcote went to trial, was convicted and is serving life in prison.

But in the civil court system, where issues of justice are more nuanced and subjective, a jury this week decided that some of the responsibility for Delancey's death fell at her own feet.

The victim shares the blame for her murder.

The verdict stunned Delancey's mother, who had sued Carlton Arms of Magnolia Valley, alleging lax security at the New Port Richey apartment complex where Kimberly was killed.

"Common sense tells you that she wasn't at fault," Sandra Delancey said. "She's sitting in her own place. Does that mean you can't sit in your own house and do what you want?"

• • •

Delancey, an elementary special education teacher, lived quietly. She didn't party or have a boyfriend. Her devotion was to her students.

Calcote stayed next door with his girlfriend, who was out of town on Dec. 4, 2004. He and Delancey talked for hours that night outside on the balcony. He drank beer; she drank wine. But when they went inside, Calcote wanted sex and turned violent. Delancey, 27, died of suffocation, smothered with a pillow.

From a liability standpoint, Calcote's role is a given. But he's indigent and locked up, so there's no purpose in suing him, said Stetson Law professor Tim Kaye.

"He's undoubtedly liable because he's committed a criminal act," Kaye said. "But that's just one cause. You can have an event caused by several factors."

Sandra Delancey's lawsuit said Carlton Arms had no policy in place to detect that Calcote, who was using an assumed name and wanted on an arson warrant, was living there. He was not on his girlfriend's lease and had not been screened like the other tenants, yet he came and went freely, past the guard house at the entrance, for months.

Barry Cohen, Sandra Delancey's attorney, told the jury that Calcote was a "piggybacker" — someone who moved in with a resident but avoided the screening process. He said that such people are a problem at apartment complexes and that Carlton Arms had no means of dealing with them.

Carlton Arms' attorney, Brandon Scheeley, portrayed Calcote as his girlfriend's invited guest who had no criminal record. His crime, Scheele said, was unforeseeable.

The defense also asked the jury to consider Delancey's drinking that night. Jurors saw a toxicologist's report showing her blood-alcohol level was between 0.153 and 0.17 at the time of her death.

If a plaintiff's own behavior — in this case, Delancey's drinking — is more than half to blame for what happened, then the defendant isn't liable for any damages.

Over Cohen's objection, the judge allowed a question about her intoxication to be included on the verdict form that jurors would fill out.

• • •

The form first asked whether Carlton Arms was negligent, and whether that negligence was a legal cause of Delancey's death.

The jury said yes.

They went on to the next question: "Was Kimberly Delancey under the influence of alcohol to the extent that her normal faculties were impaired or did she have a blood-alcohol level of 0.08 or higher, and as a result of the influence of such alcohol, was Kimberly Delancey more than 50 percent responsible for her death?"

Their answer again: yes. Carlton Arms was off the hook.

"Essentially what they're doing is they're saying imagine a chain of events. Without the negligence of the property owners, this woman wouldn't have been killed. That showed that the property owners' negligence must have been a cause of her death," Kaye said. "But even though that's true, in between the property owner's negligence and her death was her own negligence. That essentially intervened between the property owner's negligence and her death. . . . She put herself in a position that even reasonable security couldn't keep her secure from."

The jury was made up of four men and two women, ranging in age from 42 to 57. Two of the jurors declined to comment to a reporter. The other four did not respond to telephone messages.

But they gave a little more insight into their thinking by mistakenly filling out the rest of the verdict form. In the space for specifying each party's share of the blame, they gave 33 percent to Carlton Arms and 67 percent to Kimberly Delancey.

So if the jury was being asked to divvy up responsibility, why wasn't Calcote included?

"The criminal trial has already sorted all that out," Kaye said. "The case isn't about the murder. As between her and the landlord, they're saying she's more responsible than the landlord."

• • •

Cohen has vowed to appeal the verdict, and he's confident he will prevail. He doesn't think Delancey's intoxication should have been a question for the jury.

"The victim did nothing except sit on her porch and drink wine," he said. "She had every reason to believe he was an okay guy. . . . She had no reason to know he was an arsonist or a rapist. For all she knew he was on the lease and had passed scrutiny.

"It had nothing to do with the negligence of Carlton Arms," he said.

Cohen says Delancey was likely drugged. He brought in a jail witness who said Calcote told him he had drugged a woman, though there was no evidence of that in Delancey's toxicology report.

Sandra Delancey, who found her daughter's body after the attack almost six years ago, doubts that Kimberly was drunk or that she let Calcote in. It made no sense, given her daughter's quiet and cautious ways.

Now this, a verdict that vindicates Carlton Arms and blames Kim. Does it make her feel worse?

"I've been numb since she's been murdered," she said. "It can't get any worse."

Molly Moorhead can be reached at mmoorhead@sptimes.com or (727) 869-6245.

Jurors in civil case say murder victim partly to blame for her own death 08/27/10 [Last modified: Friday, August 27, 2010 10:21pm]
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