It’s not often that the family of a murder victim files a civil suit against a suspected killer.
The O.J. Simpson civil case may be the most notable exception, though it’s said that the civil action was less about collecting damages and more about proving that the former football star, who was acquitted in criminal court, actually killed his ex-wife and a male friend.
But the family of 2007 murder victim Shamaia Smith, of East Hartford, sued her convicted killer, Kenneth Otto Sr., of Ellington, and a Hartford judge recently awarded more than $9 million in damages. Trial lawyers agreed that intentional wrongful death claims are rarely made, and that recovering any damages awarded is extremely difficult because insurance policies do not cover intentional conduct.
“It’s less common because it’s impossible in Connecticut to insure yourself for intentional conduct,” said Angelo Ziotas, of Silver, Golub & Teitell, who is not involved in this case. “There’s no way [Otto] could have insurance for this loss.”
Ziotas said the more common civil strategy in such cases is for plaintiffs’ lawyers to find a third party that should have known the victim was in danger and failed to act. One example would be police knowing about domestic abuse and doing nothing to prevent a person’s death. Another example would be security personnel responding inadequately to a dangerous situation at a commercial establishment.
One of Otto’s lawyers, Richard “Dick” Brown, of Brown, Paindiris & Scott in Hartford, said the plaintiffs won’t be collecting on the judgment from his client anytime soon. “The guy’s locked up for a significant period of time and obviously doesn’t have any income,” said Brown. “It isn’t just about economics always. I assume the plaintiffs did it for reasons other than just the money. They’re extremely angry of what my client was convicted of and felt the need to seek civil damages.”
Brown, who said it hasn’t been decided yet whether to appeal the civil verdict, noted that because it’s nearly impossible to collect on intentional wrongful death claims, “there are not a lot of lawyers who want to take those cases.”
It appears that one reason that the victim’s family took civil action against Otto is because he allegedly began transferring assets to his wife even before police discovered the victim’s charred remains. As such, Smith’s estate is also suing Otto’s ex-wife in an attempt to recover some assets.
The lawyer for Smith’s estate in the civil proceedings is Stephen McEleney, of McEleney & McGrail in Hartford. McEleney did not return repeated messages last week.
Shot And Burned
In 2007, Shamaia Smith was a 22-year-old stripper at the Kahoots club in Vernon. On the afternoon of March 14, 2007, she left her parents’ house in East Hartford after telling her boyfriend she was going to work. Smith’s family, friends and co-workers never saw her again.
According to court records, police allegedly later told Kenneth Otto’s wife, Kathleen, that Smith had been working as a prostitute and had an ongoing relationship with the husband.
Kenneth Otto, now in his early 60s, told police that he picked up Smith on March 14 and dropped her off at another Kahoots club in East Hartford, but denied knowing what happened to her after that. Prosecutors, however, believe that Otto drove Smith to his 75-acre property in Stafford that day, shot her in a trailer and burned her body in a fire pit. East Hartford police identified Otto as a possible suspect after listening to voicemails he left for Smith.
Authorities say that when they searched Otto’s property on April 12, 2007, they saw Otto digging a hole with a backhoe to bury the trailer, which he had destroyed.
In a large fire pit, police found bullet shell casings, pieces of human tissue, bone fragments, teeth, part of a foot and a set of keys that, investigator later determined, belonged to Smith. Investigators say they also found Smith’s blood on a mop and on pieces of plastic and linoleum found in a vacuum bag recovered from the trailer site.
Days after police searched Kenneth Otto’s property, his wife filed for divorce. Otto was charged with Smith’s murder in May 2007, and apprehended at Bradley International Airport. He reportedly had $10,000 in U.S. and Canadian currency in his possession.
In December 2008, Otto was convicted of murder and evidence tampering. In early 2009, he was sentenced to 60 years behind bars, which, given his age, is essentially a life sentence.
Otto later challenged his criminal conviction on grounds that there wasn’t enough evidence to prove he intended to kill Smith. Otto also claimed that prosecutor David Zagaja gave an improper closing argument when he told the jury that Otto should be convicted of murder because he destroyed evidence. State Supreme Court justices, in a unanimous ruling last year, rejected those claims and upheld the conviction.
“We conclude that the circumstantial evidence and the reasonable inferences the jury could draw therefrom … are sufficient to support the jury’s finding that the defendant had the requisite intent to kill the victim,” wrote Justice Flemming L. Norcott Jr.
Even before Otto was convicted of the murder, Smith’s estate filed civil lawsuits against Otto and Otto’s ex-wife. In the claim against Otto, the estate alleged the intentional tort of wrongful death. In the case against Kathleen Otto, they alleged fraudulent transfers of cash and property to her from her husband after the killing. Kathleen Otto denies the allegations.
Last year, the state Supreme Court upheld a lower court decision attaching about $550,000 worth of Kathleen Otto’s assets in case Smith’s family wins the lawsuit alleging fraudulent transfers.
Liability in the civil case against Kenneth Otto was decided Sept. 30. In early November, the two sides then had a hearing on damages before Judge Trial Referee Richard Rittenband. The former Superior Court judge was tasked with valuing the economic damages and factoring in Smith’s loss of life’s enjoyment due to her early death.
In a ruling released in late November, Rittenband awarded the estate $9,158,233.
Of that, roughly $6.8 million was for non-economic damages. Rittenband awarded these damages at a rate of $10,000 per month, after estimating that Smith would have lived 57 more years. Rittenband also awarded nearly $1 million in punitive damages. Explaining the award for loss of life’s enjoyrment, Rittenband wrote that the victim “was fascinated with beauty and fashion, loved to walk, play games and go shopping, but above all else, her interaction with her family was paramount.”
As for economic damages, Rittenband concluded that Smith would not remain a stripper but would fulfill her goal of being a hairdresser. A plaintiff’s expert witness, Gary Crakes, a Southern Connecticut State University economics professor, estimated that Smith would earn $1.3 million over her lifetime in that profession. Rittenband went with that number for economic damages, noting that Smith had already been styling hair for acquaintances on an informal basis and hoped to get a certificate to do so commercially.
“Of course, she may have during her lifetime changed occupations and earned more but at this point, the only reasonable evaluation has to be as a hairdresser,” wrote Rittenband.
Brown, one of Otto’s lawyers, said judges and juries have a difficult time putting a dollar value on the loss of a life. He was not surprised by the nearly $9.2 million total. Brown said there is a “correlation with damages” when the circumstances surrounding the case particularly offend the trier of fact, “not to mention the pain and suffering that occurred before death.”
Ziotas, the Stamford trial lawyer, whose practice includes wrongful death cases, said it’s not unusual for a judge to award damages based on a career that a victim had aspirations for but hadn’t actually started. He noted that an aspiring hairdresser does not require a lot of schooling. He said a court would be less likely to award money for a career that required extensive education, such as a medical doctor.
The real question, said Ziotas, is whether the plaintiffs will ever recover any of the award.
“Unfortunately in these cases, that’s typically the biggest issue, can you get anything?” said Ziotas. “To sue the person who murdered someone, there’s usually something else going on.”•