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When TGM Ashley Lakes Inc., an apartment complex in Norcross, Ga., hired maintenance man Calvin Oliver, managers didn’t check to see if he had a criminal record. Nor did they take pains to keep residents’ keys secure. Those omissions ended up costing TGM Ashley Lakes $13.4 million at the hands of a jury in Gwinnett State Judge Joseph C. Iannazzone’s courtroom on Monday and Tuesday. But back in 1999, those omissions cost a young mother living in the complex, 20-year-old Melissa Danielle Jennings, her life. That’s when Oliver — whose criminal record spanned as many years as Jennings had lived — strangled her with a woman’s nylon stocking in her apartment. He was convicted of murder and is serving a life sentence. Charles A. Mathis Jr. of Savannah, Ga.-based Mathis & Adams was lead counsel for Jennings’ estate, assisted by another lawyer from his firm, Douglas P. McManamy, and John D. Steel of Atlanta’s Matthews & Steel. The civil suit named as defendants apartment manager Maria Caruthers; leasing manager Beverly Glover; and the New York-based property management company, TGM Associates. “This was a horrible way to die,” Mathis said. But, he added, it was foreseeable. Leasing manager Glover had worked with Oliver before, and knew he’d spent time in prison, Mathis said. She asked him to apply for the job, and he did, he added. But the apartment managers never did a criminal background check on Oliver and didn’t contact all of his references, according to Mathis. The job application he filled out asked only whether he’d had any felony convictions in the last five years. He answered — truthfully — that he hadn’t. But going back further, Mathis said, “Oliver had been convicted previously of rape, armed robbery, burglary, robbery by force, credit card fraud, and at the time that he was hired by the defendants in August 1998, he had an outstanding warrant for his arrest arising out of the theft of checks in College Park, Ga. Oliver’s criminal history spanned more than 20 years.” Earl W. “Billy” Gunn, along with partner John C. Bonnie of Atlanta’s Weinberg Wheeler, Hudgins, Gunn & Dial, represented the defendants. The apartment managers did do a background check on Oliver, Gunn countered. They just didn’t do a criminal background check. He said the managers talked with two of Oliver’s former employers. One gave him a good reference; the other said she’d hire him again. Gunn also said Oliver’s arrest warrant had been outstanding for 14 months before the murder. “The point is, the people [police] charged with looking for him weren’t looking very hard,” Gunn said. OLIVER STARTED IN ’98 Oliver started working at Ashley Lakes in August 1998. Three months later, Jennings moved into the complex with her 2-year-old son, Triston McElwaney, and her fiance, Luis Payano. Between October 1998 and February 1999, the complex had at least 11 nonforcible entries or burglaries into apartments, according to Mathis. “Certain tenants inquired of management whether they had done background checks on their employees,” Mathis said. “Management did not ever notify other tenants in the complex that there were a string of nonforcible entries or that people were suspected of entering with keys.” Although Oliver was a suspect in the nonforcible break-ins, the apartment complex’s lawyer, Gunn, said even the police never did a criminal background check. “In hindsight, it’s easy to say you should have done a criminal background check. My point is that even the [law enforcement] professionals in charge didn’t do them,” he said. KEY-CONTROL PROBLEMS According to Mathis, Ashley Lakes’ key-control policy was problematic. Though the complex had a lockbox for keys to its 240 apartments, the manager’s office had duplicate keys. Also, he said, evidence showed that sometimes the key to the lockbox was left unsecured and sometimes key sign-out procedures weren’t followed. The maintenance office also had a set of 240 keys and a key-duplicating machine. When keys were lost, according to Mathis, employees made copies without notifying tenants that keys to their apartments were missing. On March 15, 1999, Jennings came home for lunch from her job as an administrative assistant at a landscape company in Buckhead. She never went back to work, and her fiance found her later that day, strangled with the nylon stocking. According to Mathis, his team’s medical expert, Dr. Stephen Dutton, testified that Jennings suffered a venous — as opposed to arterial — strangulation. The difference: With a venous strangulation, blood still makes its way to the brain. “She lived for a time,” he said. “She would have known she was being strangled to death.” Dutton’s testimony, according to Mathis, indicated Jennings would have been completely conscious for 30 to 40 seconds, then would have been partially conscious for three to five minutes before she died. Scratch marks on Jennings’ neck showed she may have been struggling to free herself, Mathis said. This, Mathis continued, was the reason for the large pain-and-suffering award. The jury, which included seven men and five women, deliberated for about 4 1/2 hours after the five-day trial, and on Monday awarded Jennings’ son, Triston, $2.5 million for his mother’s pain and suffering and $10.625 million for wrongful death. Her parents, Sherry and Phillip Jennings, are co-administrators of the estate. Jennings v. TGM Ashley Lakes, No. 99-C-7943-4 (Gwinn. St. filed Dec. 8, 1999). Mathis said he had asked for $2.5 million for pain and suffering — the exact amount the jury awarded — and $11.8 million on the wrongful death claim. Mathis said he gauged the $11.8 million by calculating Jennings’ future earnings and value as a homemaker, which came to $1.8 million. The rest he attributed to the intangible value of life. CLOSING ARGUMENTS In closing arguments on the issue of punitive damages Tuesday afternoon, Gunn noted that the jury already had awarded a total of $13.1 million in compensatory damages. The Ashley Lakes property is valued at $12.6 million and the cash assets of the partners in TGM Associates were $648,418 at the close of 2001. Those assets, totaling $13,236,418, are approximately $145,000 less than the jury awarded in compensatory and punitive damages. In closing arguments, Gunn argued that if the jury returned a large punitive damage verdict, it could be “a death penalty for Ashley Lakes.” Gunn argued that his clients had no specific intent to cause Jennings’ death. In the plaintiffs’ closing, Mathis told the jury that the only person who got a death sentence was his client. He said the defendants had shown specific intent by their failure to protect his client’s safety through the hiring of Oliver and their key-management system. He didn’t suggest a dollar figure for punitives, but said it should be some multiple of as much as a million dollars to get the message to TGM’s top management. After a little more than an hour, the jury returned a $2.5 million punitive damages award, but did not find specific intent. This means, under Georgia law, punitives are capped at $250,000. Gunn said his clients plan to appeal. Among other things, he said, there’s reversible error because, although his clients didn’t put on any evidence — all of their potential witnesses had been called for cross-examination by the plaintiffs — the judge did not allow the defense to open and close the final arguments. Also, he said he believes it was reversible error for the judge to allow evidence of a negligent hiring claim when the conduct at issue was outside the scope of Oliver’s employment.

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