Personal Injury & Torts
Aug. 13, 2002
Deal in Assault by Deliveryman
SAN FRANCISCO - A Santa Clara auction house has agreed to pay millions of dollars to settle claims it is responsible for a home-invasion murder because it neglected to uncover an employee's criminal record.
Attorneys in the case declined to name the final dollar figure, although the settlement was entered on the public record. Plaintiffs attorneys from Walnut Creek's Hinton & Alfert said the case settled for "multiple millions."
More importantly, the lawyers said, the case was a reminder to home-delivery businesses that they need to inquire into employees' criminal history.
"If you're an employer and going to send an employee into the homes of customers, you have a responsibility to screen the employee to find out if he imposes a risk," partner Peter Alfert said.
The lawsuit accuses Somerset Auctions of failing to adequately investigate 22-year-old Mesa Kasem before hiring him as a deliveryman. Kasem had just finished serving a prison term for shooting and wounding a woman in her home.
In November 1999, according to court records, Kasem delivered an antique lamp to retired plastic surgeon Kim Fang in his Alamo home. Two months later, Kasem returned with a man named Soknoeum Nem. They forced their way into the house and pistol-whipped Fang's wife, her brother and the nanny.
Responding to the noise, Fang ran upstairs and shot Kasem, killing him. Nem then shot and killed Fang. A Contra Costa County jury convicted Nem of first-degree murder in June. He is scheduled to be sentenced to life in prison later this month.
Several members of Fang's family sued the auction company for wrongful death, on grounds the company failed to exercise reasonable care in hiring Kasem. Fang v. Somerset, CV793389.
The case raised major legal issues concerning Somerset's duty and the foreseeability of the crime. Defendants raised both issues in summary judgment motions, which were denied. They appealed those rulings, but lost again.
The law imposes no specific duty on employers of deliverymen, said Hinton & Alfert partner Peter Hinton, but minimal reasonable care would require an employer to ask if the employee had been convicted of a felony.
"There's no [Book of Approved Jury Instructions] instruction," he said. "It's common sense. The employee has a responsibility to be sure they don't unleash a danger on a customer. It's reasonable care to make sure it's not a violent convicted felon who just got out of the penitentiary."
The case was scheduled to begin trial today, but the attorneys reached the settlement Thursday.
Neither Somerset officials nor their attorney, Richard Williams, of San Jose's Ropers Majeski Kohn & Bentley, returned phone calls Friday.
Tyler Cunningham
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