As uncertainty swirls around any criminal prosecution of George Zimmerman, the shooter of 17-year-old Trayvon Martin in an Orlando suburb, one option that remains open to Martin's family is a civil case.
Zimmerman could be shielded from prosecution under Florida's 2005 "Stand Your Ground Law," which gives immunity to people who use deadly force in their own defense without clear evidence of malice. The same law also says a person who uses such force is immune from civil action.
However, given certain conditions, the Martin family could bring a wrongful death case against Retreat at Twin Lakes Homeowners' Association, Inc, the homeowners association for the central Florida gated community where the killing took place, legal experts said.
Such a lawsuit would likely allege that the association was negligent in overseeing Zimmerman's activities, and could seek a judgment in the seven-figure range, said Philip Gerson, a Miami trial lawyer and founder of the law firm Gerson & Schwartz.
Ben Crump, an attorney for the Martin family, told reporters Monday that there were no plans to file a lawsuit now. But a wait-and-see strategy is common with alleged crime victims and their relatives. Often they wait until a criminal proceeding concludes to pursue a civil case in an effort to avoid appearing to be motivated by money.
A civil lawsuit in the Martin case, legal experts said, would be predicated on establishing a relationship between Zimmerman and the Retreat at Twin Lake association, as well as establishing a relationship between Twin Lakes homeowners and a crime watch group that Zimmerman led.
The homeowners association acknowledged Zimmerman and the neighborhood crime watch in a February newsletter, according to the Associated Press. The newsletter encouraged residents to contact Zimmerman in case of an incident, it said.
"If you've been the victim of a crime within the community, after calling the police, please contact our captain, George Zimmerman ... so we can be aware and help address the issue with other residents," the newsletter said.
That relationship is likely to come into play, said Donna DiMaggio Berger, a founding partner at the law firm Katzman Garfinkel & Berger, which represents community associations in Florida.
"It's not as if the association can say we had no idea ... that Zimmerman held himself out as a neighborhood watch captain," she said.
Efforts to reach board members for Retreat at Twin Lakes Homeowners' Association were unsuccessful.
WHAT COVERAGE?
A crucial factor in such a lawsuit would be the insurance Twin Lakes carries and whether it would cover any payout stemming from litigation over the Martin shooting.
Most homeowner associations have policies with at least $1 million in coverage, according to insurance attorneys, but it is unknown what kind of insurance, if any, Retreat at Twin Lakes carries.
The vast majority of homeowner associations do not have insurance policies that cover the acts of their volunteers, according to Berger.
If that is the case with Retreat at Twin Lakes, the residents could be responsible for satisfying any judgment against the association, said Berger, the community associations lawyer not involved in the case.
Such a scenario would not be unprecedented. In the mid-1990s, a Tarmac, Florida, homeowners association was hit with a $1.2 million judgment in an age-discrimination case. The group was unable to pay and had to file for bankruptcy. That left individual residents to pick up the tab, which came to more than $7,000 for each homeowner.
ACTION FORESEEN?
Another issue could be whether the board members of the homeowners association could have foreseen Zimmerman's actions and what kind of background checks it made on him.
"If this guy had been going around and chasing people, being a nuisance, and intimidating people, then maybe the homeowners association would have some liability," said Manuel Dobrinsky, a personal injury attorney at Freidin Dobrinsky who has represented victims in wrongful death cases.
Without evidence proving that the association could have foreseen the shooting, Dobrinsky said that there may be no case against the association.
The February 26 shooting of Martin initially sparked widespread public outrage against Zimmerman. The 28-year-old white Hispanic was pilloried for shooting Martin, who is black, as the unarmed youth was returning from a convenience store carrying a bag of Skittles candy and a can of Arizona iced tea.
But according to an account published Monday in the Orlando Sentinel, Zimmerman told police that Martin had punched him in the face and slammed his head into the ground before the fatal gunshot.
(Reporting by Andrew Longstreth; Additional reporting by Dan Trotta; Editing by Xavier Briand)
