The Murder of Gabby Petito: The Lawsuit

[00:00:00] Content Warning, this episode contains discussion of murder as well as domestic violence. If you or someone you know is suffering from domestic violence, please call the National Domestic Violence Hotline at 800-799-7233. So for those of us who follow true crime, it often seems like for us,

[00:00:23] the case is in when there appears to be some sort of a resolution. Whether someone is convicted or perhaps the guilty person takes his own life. But that's not always the case for the people directly affected by the crime, those left behind.

[00:00:43] They want answers, they want more, and they often keep fighting for that. And I mention this now because of the Gabby Petito case. We'll give a brief recap of that case in a moment.

[00:00:58] But the man who took the life of Gabby Petito, Brian Laundrie, of course killed himself. Gabby's family has not gotten the justice or the closure they want. And they are seeking to get that through a civil court action. They've actually filed a suit against Brian Laundrie's parents

[00:01:22] and an attorney that the Laundrie family used at the time that Gabby Petito went missing. This suit raises a lot of interesting questions. We've gotten a lot of questions about it from our audience,

[00:01:36] and so we'd like to take an episode and talk about it and discuss it all and see what we think about it. My name is Ania Cain. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet.

[00:01:51] We're a true crime podcast focused on original reported interviews and deep dives into murder cases. We're The Murder Sheet. And this is The Murder of Gabby Petito, the lawsuit. So as we mentioned, the Petito family, by the Petito family I refer to Gabby's mother and father,

[00:02:56] are suing the family of Brian Laundrie, his parents and their lawyer. So the first question that may come to mind are why are they suing them? What are they alleging? And we will get into that in just a second.

[00:03:11] But first I want to mention that one thing, a case like this brings to the forefront is some interesting questions about what we as human beings owe to each other in difficult situations.

[00:03:28] And I thought it was striking that even the plaintiffs in this case have conceded that the Laundrie family and their attorney had no affirmative duty to act. That in the events we're about to recount, they were within their rights to keep silent.

[00:03:50] They didn't have to tell the world what they knew about what their son had done to Gabby. So this suit is not about them saying you had a responsibility as soon as you found out that your son killed our daughter to tell the world about it.

[00:04:06] They're not saying that. Okay, but we'll get into what it is about. So yeah, what are they saying? Then what are they alleging? To do that and to also offer a brief recap of the case.

[00:04:19] I always think it's interesting in these complaints and in these lawsuits to look at the facts through the eyes of the people filing the suit. And so we're going to begin by reading the Petito's own account of the relevant events.

[00:04:38] Brian Laundrie and Gabrielle Petito became engaged to Mary on or about July 2nd, 2020. On July 2nd, 2021, Brian Laundrie and Gabrielle Petito left New York in a van owned by Gabrielle Petito to take a trip to the western United States, which was expected to last for several months.

[00:04:56] Prior to the trip taken by Gabrielle Petito and Brian Laundrie, Joseph Petito and Nicole Schmidt and Christopher Laundrie and Roberto Laundrie had a cordial relationship.

[00:05:07] Gabrielle Petito had hopes of becoming a travel influencer, a van lifer and document her cross country travels on social media sites such as YouTube, Instagram and TikTok.

[00:05:18] During the course of the aforementioned trip, Gabrielle Petito called her family almost daily including her parents, Joseph Petito and Nicole Schmidt and her siblings. The last communication that Gabrielle Petito had with Joseph Petito was on August 21st, 2021.

[00:05:34] The last communication that Nicole Schmidt had with Gabrielle Petito was on August 27th, 2021. It is believed that on August 27th, 2021, Brian Laundrie murdered Gabrielle Petito. The cause of her death was blunt force injuries to the head and neck with manual strangulation.

[00:05:52] Gabrielle Petito was 22 years of age at the time of her death. After Brian Laundrie murdered Gabrielle Petito, Brian Laundrie sent text messages back and forth between his cell phone and Gabrielle's cell phone in an effort to hide the fact that she was deceased.

[00:06:07] On August 27th, 2021, it is believed that Brian Laundrie sent a text to Nicole Schmidt in which he referred to Gabrielle Petito's grandfather Stan by name. Gabrielle Petito never called her grandfather by his name.

[00:06:21] So what we've heard there is an account which I think most people would agree on about the tragic death of Gabrielle Petito at the hands of her trusted fiancé Brian Laundrie. Yes, yes. It's a terrible story of domestic violence.

[00:06:41] It's a story that happens all too often all over the world. It's horrific. Where women are killed by men they trust. So we're stopping there just to highlight that that what we've just heard is what Brian Laundrie did to Gabrielle Petito.

[00:06:58] And that in and of itself is not the subject of the lawsuit because of course you can't sue Brian Laundrie now because he's deceased. And now this filing turns instead to what Mr. and Mrs. Laundrie and their attorney Steven Bertolino did that the Petito family finds actionable.

[00:07:19] In other words, what they did to merit this lawsuit being filed in the mind of the Petitos. On August 29th, 2021, Brian Laundrie advised his parents Christopher Laundrie and Roberta Laundrie in a frantic telephone call that Gabby was gone and he needed a lawyer.

[00:07:40] On August 29th, 2021, Christopher Laundrie and Roberta Laundrie spoke with Steven Bertolino, advising him that Gabrielle Petito was gone, that Brian Laundrie needed a lawyer and sent him a retainer on September 2nd, 2021.

[00:07:56] On September 2nd, 2021 on behalf of Brian Laundrie, Steve Bertolino entered into a fee agreement with Fleener Peterson LLC, a criminal defense law firm located in Laramie, Wyoming for purposes of representing Brian Laundrie.

[00:08:10] Prior to the time the Fleener Peterson LLC was retained, Steve Bertolino contacted other attorneys in Wyoming to represent Brian Laundrie, including a public defender's office in the same county where Gabrielle Petito's body was ultimately discovered.

[00:08:40] I would certainly expect Mr. Bertolino, the attorney being sued to fully disclose all of his communications with his client, but you can kind of look at other pieces of evidence and start making reasonable guesses or hypothesis.

[00:08:59] And so I'd like to ask you, what conclusion do you draw on, yeah? From the fact that Mr. Bertolino contacts a criminal defense attorney in the county where Gabby Petito's body would later be discovered. Well, you know, my emotional impulses, that is just a huge red flag.

[00:09:20] I suppose in a situation like this, like I don't know if that's, that's not necessarily proof of anything because he, if there's nothing else indicating that he knew about the murder, then you could write it off as well.

[00:09:33] We were last there, it's a coincidence, but like to me personally as a civilian just reading this, that looks really bad. It certainly raises the strong possibility that Mr. Bertolino had gotten from Brian Laundrie the location of Gabby Petito's corpse.

[00:09:51] Because specifically looking at in that county for a public defender sort of indicates that you know where the murder happened. Yes, because essentially he would, if Brian Laundrie hadn't taken his own life, he would be charged from murder in the county where the crime occurred.

[00:10:09] And I think this is going to be interesting because you are an attorney, Kevin. I am not. I'm a humble journalist. And as we kind of peel back this story, where, where is the dividing line between representative and accomplice in a case like this?

[00:10:27] I don't know if it's going to be clear. I'm not sure if this is the case where it's going to be okay. There's a clear definitive line here, but I at the very least think it's an interesting discussion because it's yeah.

[00:10:40] And also, frankly, you don't want to penalize defense attorneys for conducting criminal defense. No, you don't because that's their jobs and a lot of people might find conduct maybe morally odious.

[00:10:57] But when you look deeply at it and when you look closer at it, there is a reason for it being that way. You see in cases just as an example off the top of my head, you see defense attorneys victim blame.

[00:11:10] I think we all can say at this point in 2023 that's usually pretty odious behavior. Is there a line there? Perhaps there is. Maybe there needs to be changes.

[00:11:19] But at the same time, it is a person's job to get that person acquitted or represent them in the best way possible.

[00:11:25] So you could also see from the argument, well, if I feel like that's the best way to do it, is that, is that make it more morally gray? You know, I would think it does.

[00:11:36] On August 30th, 2021, Brian Laundrie sent a text message from Gabrielle Petito's cell phone to Nicole Schmidt stating that there was no service in Yosemite Park in an effort to deceive Nicole Schmidt into believing that Gabrielle Petito was still alive.

[00:11:51] On September 1st, 2021, Brian Laundrie returned to the home of his parents, Christopher Laundrie and Roberta Laundrie, driving Gabrielle Petito's van. After this point in time, there was no contact between Joseph Petito and Nicole Schmidt on the one hand and Christopher Laundrie and Roberta on the other.

[00:12:08] From September 10th, 2021 until September 19th, 2021, when Gabrielle Petito's remains were found at the Spread Creek Dispersed Camping Area in Wyoming, plaintiffs were extremely distraught and were attempting to locate Gabrielle Petito.

[00:12:22] While Gabrielle Petito's family was suffering, the Laundrie family went on a vacation to Fort DeSoto Park on September 6th through 7th, 2021. They went on vacation knowing that Brian Laundrie had murdered Gabrielle Petito.

[00:12:35] It is believed that they knew where her body was located and further knew that Gabrielle Petito's parents were attempting to locate her.

[00:12:43] So this goes back to what we mentioned earlier where it's conceded that the parents and the lawyer did not have a duty to act or to let people know what their son had done. What we're hearing described here frankly sounds like outrageous.

[00:13:05] Evil. It's evil. This is an evil thing. Shocking behavior does not appear that they're going on vacation after their son killed a woman is what they're being sued for. Okay, and as we've stated, morally odious evil behavior is not always necessarily against the law.

[00:13:25] It's antisocial and it's despicable in my opinion, but it's not necessarily something that you can be sued over. And I think that's an important distinction. But it's certainly, I think for anyone who can imagine what the Petito family was going through in this situation.

[00:13:44] I mean, it's a horrible that they were put through that and that people listen, I mean, when your child has done something awful, I understand that there's the impulse to protect said child. But with something of this level, the consequences are coming.

[00:14:01] So being a support system, getting them the representation they need, all of that falls in line with that support. But this is something else in my opinion.

[00:14:13] All of us have people who are important to us, whether it's a parent or a child or a spouse or just a dear friend. And imagine how it would feel if that person went missing and you did not know if that person was alive or dead.

[00:14:34] And you were hoping, you were hoping with all your heart that they were alive out there and you would be able to find them and you were devoting your resources to that and you were trying very hard to find them

[00:14:48] and you were trying to hang on to hope and the hope is gradually slipping away. All of the while, there is someone out there who killed your loved one and he's keeping silent and the family whom he's confiding in is also keeping silent. Yeah, yeah.

[00:15:06] It's a horrible, horrible situation. Unconscionable. In an effort to avoid any contact with Nicole Schmidt on or about September 10th, 2021, Roberta Laundrie blocked Nicole Schmidt on her cellular phone such that neither phone calls nor text could be delivered and she blocked her on Facebook.

[00:15:26] On September 13th, 2021, the date Brian Laundrie left his home, according to a televised interview with Steve Bertolino on or about October 23rd, 2021, Brian Laundrie was grieving. According to the Cambridge English Dictionary, grieving is defined as feeling sad because someone has died.

[00:15:43] On September 14th, 2021, with full knowledge that Gabrielle Petito had been murdered by Brian Laundrie and it is believed that they knew the whereabouts of her body, Steven Bertolino on behalf of Christopher Laundrie and Roberta Laundrie issued the following statement.

[00:15:58] This is understandably an extremely difficult time for both the Petito family and the Laundrie family. It is our understanding that a search has been organized for Miss Petito in or near Grand Teton National Park in Wyoming.

[00:16:12] On behalf of the Laundrie family, it is our hope that the search for Miss Petito is successful and that Miss Petito is reunited with her family. On the advice of council, the Laundrie family is remaining in the background at this juncture and will have no further comment.

[00:16:26] For the Laundries and Steven Bertolino to express their hope that Gabrielle Petito was located and reunited with her family at a time when they knew she had been murdered by Brian Laundrie was beyond outrageous.

[00:16:38] So now we're getting into the part where the Laundrie family and Mr. Bertolino are actually taking actions. They're not just being silent, they're taking actions. Is LA person defined that statement outrageous? Yes. Okay, but let me be devil's advocate for two seconds here.

[00:16:59] Don't hate me. I just, I'm trying to think through this through multiple perspectives. Is it possible that they truly didn't know and that he was keeping things vague by saying gone and not... Okay, even when I say that out loud, that doesn't seem likely. It doesn't sound plausible.

[00:17:16] No. I think... Also, if you didn't think she was dead, why be so cagey? And why be saying, why say he was grieving? I think if you want to, you could try to make the argument. I don't feel it's a good argument. No.

[00:17:34] But you could say, well, when I said that I hoped the search was successful and Gabrielle would be reunited, I meant I hoped her remains would be reunited. Oh God. Jesus. I mean this is, yeah, this is bad. They didn't have to issue that statement.

[00:17:49] No they did not. They did not have to issue a statement saying what they said. They hoped Gabrielle would be found and reunited. What do you make of them deciding to even do that? It's, I don't know what their thinking was.

[00:18:02] Were they thinking she would never be found? I don't know. Well, there was so much media pressure on this case at this time. It may have just been one of those unforced errors. And as we all know, we try to get comments from people all the time.

[00:18:18] And most people have no trouble saying no comment. That's true. In this case though, I mean the Gabby Petito disappearance when this was ongoing in 2021 gripped the nation in a way that you know very few cases do. So, I mean the media was camped out on this one.

[00:18:40] And I'm certainly not making excuses for this behavior. I'm just more talking through it strategically. That media attention may have made them feel uncomfortable enough to feel like this was a good idea. Which obviously from a legal perspective was a huge mistake.

[00:18:56] Kevin, why is it okay to not do things but bad to do things? Do you know what I'm saying here? You know we can all agree that maybe like not telling people where their murdered daughter is is a horrible thing to do no matter what.

[00:19:10] But why does the law step in when they're being proactive rather than when they're just sort of sitting around doing nothing? Taking an action that hurts somebody is generally seen as being inherently worse than just sitting back and doing nothing and letting people get hurt.

[00:19:30] Whether you agree with that or not, that's generally the perception of the law. And you also may disagree. You may feel that we as a society, we as a culture should have duties and obligations to one another.

[00:19:45] We should have a duty to step up and reveal what we know in cases like this. But that's not what's been found in law. I can understand where there can be some, you know,

[00:19:59] you don't necessarily want to let, you know, have legal red tape on everything at all times in terms of because where's the line of having a duty to one another, right? And if you basically are trying to force people to behave in a certain way,

[00:20:14] that's not really a free society anymore. But certainly in some of these extreme cases, it barely sits very badly morally with some of this behavior, I suppose. So after that, there's a few paragraphs in the filing basically saying Bertolino was acting as the laundry's attorney.

[00:20:38] He was their agent and he knew that these communications would reach the family. So let's pick up a little bit later in the filing, the complaint. On September 16th, 2021, Attorney Richard Stafford on behalf of Gabrielle Petito's family issued a letter to Christopher Laundrie and Roberta Laundrie as follows.

[00:21:02] We are writing this letter to ask you to help find our beautiful daughter. We understand you are going through a difficult time and your instinct to protect your son is strong. We ask you to put yourselves in our shoes.

[00:21:14] We haven't been able to sleep or eat and our lives are falling apart. We believe you know the location of where Brian left Gabby. We beg you to tell us as a parent, how could you let us go through this pain and not help us?

[00:21:28] As a parent, how can you put Gabby's younger brothers and sisters through this? Gabby lived with you for over a year. She was going to be your daughter-in-law. How can you keep her location hidden? You were both at Jim and Nicole's house.

[00:21:42] You were both so happy that Brian and Gabby got engaged and were planning to spend their lives together. Please, if you or your family have any decency left, please tell us where Gabby is located. Tell us if we're even looking in the right place.

[00:21:55] All we want is Gabby to come home. Please help us make that happen. Despite the fact that the defendants knew Gabrielle Petito was deceased, knew where her body was located and expressed their hope that Gabrielle Petito would be reunited with her family,

[00:22:09] Christopher Laundrie, Roberta Laundrie and Stephen Bertolino refused to respond to either Joseph Petito or Nicole Schmidt. While Joseph Petito and Nicole Schmidt were desperately searching for information concerning their daughter, Christopher Laundrie, Roberta Laundrie and Stephen Bertolino were keeping the whereabouts of Brian Laundrie secret.

[00:22:27] Gabrielle Petito's remains were discovered on September 19th, 2021 in Bridger-Teton National Forest in Wyoming. On that same day, Stephen Bertolino issued a statement saying, The news about Gabby Petito is heartbreaking. The Laundrie family prays for Gabby and her family.

[00:22:45] Christopher Laundrie, Roberta Laundrie and Stephen Bertolino knew of the mental suffering and anguish of Joseph Petito and Nicole Schmidt in not knowing the well-being or location of their daughter, and further knew that such mental suffering and anguish increased each day that Gabby Petito was missing.

[00:23:03] While Christopher Laundrie, Roberta Laundrie and Stephen Bertolino remained silent about Gabby Petito's death at the hands of Brian Laundrie and the location of her body, all the while knowing that she was deceased and knowing the proximate location of her body,

[00:23:17] they chose to issue statements on September 14th, 2021 and September 19th, 2021. In issuing the statements, Christopher Laundrie, Roberta Laundrie and Stephen Bertolino engaged in conduct which was intentional or reckless, and they knew or should have known that the statements would cause emotional distress

[00:23:38] and knew or should have known that Joseph Petito and Nicole Schmidt would likely suffer emotional distress from the statements. Christopher Laundrie, Roberta Laundrie and Stephen Bertolino exhibited conduct which was outrageous

[00:23:51] and went beyond all bounds of decency and is regarded as odious and utterly intolerable in a civilized community in that they remained silent concerning Gabby Petito's death and the location of her body

[00:24:03] but then made statements giving hope to Joseph Petito and Nicole Schmidt that Gabby Petito was still alive and expressed it was a difficult time for the Laundrie family knowing their son had murdered Gabby Petito.

[00:24:17] So that is basically the crux of this suit. Do you have any reactions to what you've just read? It's just, it's infuriating to read about. It really is. I don't know what this family hoped to get out of the situation.

[00:24:33] I'm sorry but even if the parental instinct to protect one's child is incredibly strong, I think we can understand that but not at the expense of something this serious. They're not covering up his shoplifting expedition.

[00:24:49] I mean this is a murder of another child and a young woman who had her life ahead of her and who they were excited to welcome into their own family. And also, let's be honest, if you're Mr. and Mrs. Laundrie and you want to protect your son

[00:25:05] who has just confessed to committing a murder to you, the smart thing to do would be to immediately go to authorities because it's going to come out. There's nothing you can do to stop people from realizing what your son has done.

[00:25:24] All you can do is make it a little bit easier and better. And the smartest way to do that is to be able to say, Brian took responsibility immediately he went in and he told the officers what he had done. I think that is such a good point.

[00:25:40] You can channel the protective impulse into morally sound and responsible actions to ensure that he's getting the best legal advice, ensure he's getting the best representation. Have him cooperate, tell his side of it

[00:26:01] and work out an effective strategy to deal with the legal ramifications of his incredibly serious and disgusting actions. If they had done that, their son would likely still be alive today. Yeah, that's actually, you know, I mean, this covering something up at this level, it's impossible.

[00:26:22] It's not going to be effective. And again, there's healthier and less horrible ways to channel the protective impulse. No one's saying you have to throw your son to the wolves or disown him in this situation.

[00:26:37] But trying to, I mean, from the outside, we can't know what they were thinking obviously, but from the outside this seems to be a group of people who are almost trying to protect him from any consequence. You know, let's go on a vacation, let's not cooperate at all.

[00:26:53] It's all crashing down around you. That's not going to work. So now let's take just a little bit of time before we wrap up to discuss some of the responses made this suit by the Laundries and Mr. Bertolino, namely I want to go through their affirmative defenses.

[00:27:13] So the obvious question when I say that is what is an affirmative defense? And an affirmative defense is a situation where you're not necessarily denying doing what you're accused of doing,

[00:27:26] but you're saying I can offer some evidence. I can offer some arguments that if you accept those will show that I don't deserve to be found liable for it. So can I give an example? I have one in mind. Oh no, you do yours first.

[00:27:40] Yours is going to be better, Kevin. You do yours first. So I can embarrass myself in front of the listeners. Yes.

[00:27:46] Is it sort of like if you crash into a brick wall and break the brick wall in your car and it's like, are you drunk or did you have a heart attack?

[00:27:53] If you had a heart attack, maybe that's some evidence that, you know, you're not liable for that. Well, you still have to pay for the damages. Oh yeah. Well, there goes my Sunday.

[00:28:06] What I was going to say is let's say Anya is accused of shooting and killing John Doe. Geez.

[00:28:15] And Anya's a classic affirmative defense could be yes, I did shoot and kill John Doe, but at the time he was coming towards me with his own guns and he was firing at me and yelling that he was going to kill me.

[00:28:29] In other words, I acted in self-defense. There's been a high noon situation. So if you accept Anya's account and find that she acted in self-defense, even if you believe that she killed the man, you would not find her criminally liable. Okay. So ignore the brick wall fiasco everybody.

[00:28:47] Listen to the self-defense claims. That's what this is like. See, my metaphors go off the rails and that's why you're here to kind of bring us back to some legally sound standing. So I'm going to read a couple of these affirmative defenses.

[00:29:04] Let's start out with some of the ones offered by Mr. Bertolino. The damages set forth in plaintiff's third amended complaint were caused by or contributed to by individuals or entities over whom this defendant has no control.

[00:29:19] As such, the defendant is not liable or alternatively only liable for his pro rata share of damages. So he's saying it wasn't me that did this. The implications are it could maybe it was Brian Laundrie's act and committing the murder that did this.

[00:29:36] It wasn't me or maybe I was we'll get to this in a minute. Maybe I was ordered to issue the statement by the family. So it was them issuing the statement and I was just doing what I was told.

[00:29:46] So maybe just give me a little share of the damages. So that's basically that defense plaintiffs have failed to set forth a cause of action recognizable under Florida law. The deficiencies with plaintiff's cause of action include they're not limited to plaintiff's severe emotional distress was pre existing.

[00:30:05] Prior to the alleged conduct of this defendant and as such is not actionable plaintiff's claims that this defendant failed to lessen or reduce their pre existing emotional distress are not actionable.

[00:30:17] Plaintiffs have failed to allege facts demonstrating intentional or reckless conduct by this defendant plaintiffs have failed to identify how the alleged outrageous conduct by this defendant is illegal cause of their damages.

[00:30:31] The defendant did not make the alleged outrageous statements directly to plaintiffs and plaintiffs were not the targeted recipients of the statements.

[00:30:40] Again just trying to he's saying it's not outrageous enough it wasn't directed at them I was just sending it out to everybody so it shouldn't count plaintiff's claims are barred because they are based upon statements that are protected by the litigation immunity privilege.

[00:31:01] What is that what is the litigation privilege doctrine so basically that is if you hire an attorney and he's defending you vigorously in litigation.

[00:31:14] He's not held to the same standard for statements he makes because you would expect an attorney to behave zealously and really strenuously argue for you and perhaps he would be afraid to do that if he could face legal actions by whoever is on the other side of the fence.

[00:31:34] Does this is this the same thing that in the Delphi murders case that we also cover where Richard Allen the defendant in that case his old defense team put together a theory of the crime where they named names and said that these people are part of an odinous cult.

[00:31:52] People were asking us can they be sued for libel about that is this the same concept is the same general principle because in the Delphi case those are actually in court filings right.

[00:32:02] This wasn't in court filings and so it raises the question OK if we have a litigation privilege. If you're not held strictly liable for statements you make during litigation then the question becomes how do you define during litigation.

[00:32:19] Certainly if you're filing court documents or things like that that's obviously during litigation at the time Mr. Bertolino issued these statements.

[00:32:28] It's not clear that it was during litigation is not clear that the law is not clear that the law and reason for facing any litigation at the time so it's not really clear to me why he thinks that would be applicable.

[00:32:41] Yeah the Delphi case seems like a clear cut thing because it's in a court filing it's not a statement to the press you can argue that you know it certainly piqued the press's interest but it is literally a court filing.

[00:32:52] In this statement given to press I don't really see how that's an argument unless it's just a very broad concept that typically covers a lot of different things.

[00:33:03] Plaintiffs claims against this defendant are barred based upon plaintiffs failure and inability to establish conduct on the part of this defendant that is outrageous enough as a matter of law to support such a claim.

[00:33:18] So what he is saying there is he's actually tried this argument he's tried to get the case dismissed and the judge the spoiler didn't buy this argument but the argument there is when you say it as a matter of law this doesn't fit the definition.

[00:33:35] Judges get to apply the law and determine what the law is juries get to decide the facts and so he's basically saying a judge should step in and say this was not outrageous enough.

[00:33:47] Now when we talk about law and facts it can be confusing to understand what this is what a judge should do this is what a jury should do. So let me give an example.

[00:34:01] Let's say Anya is driving on a highway where the speed limit is 65 and she gets a ticket for speeding and the police officer says she was going 60 and Anya says no actually I was only going 55.

[00:34:20] A judge could look at that and say OK the parties don't agree on how fast she's going but even if hypothetically I decide that the police officer who ticketed her is telling the truth and we accept that interpretation and say that she was going 60 as a matter of law going 60 is going less than 65.

[00:34:45] So therefore just as a matter of law we need to determine how fast she was going. Just as a matter of law even if we take what is alleged she did not break this law. Ha I win.

[00:34:59] Now let's say Anya is on that highway where the speed limit is 65 and she says I was going 65 she gets a ticket and the officer says she was going 75.

[00:35:10] At that point there's a dispute among both sides as to what the actual facts are and determining what those facts are was she going 65 was she going 75.

[00:35:22] That would determine whether or not she would be held criminally liable and that's when a jury would step in and listen to both sides and make up their minds. OK that makes some sense.

[00:35:33] Plaintiffs claims are barred because they are based upon the defendant's assertion of their legal rights in a legally permissible way. So he's basically saying hey we had a right to issue a press release first amendment I guess first amendment right.

[00:35:51] Plaintiffs claims against this defendant fail on the basis that this defendant was acting within the course and scope of his agency relationship with his clients and the alleged wrongful statements were issued on behalf of this defendant's clients.

[00:36:09] That almost sounds to me like even if they were wrong he's not saying that but like they're allegedly wrong but even if they are wrong I was just. I was just following orders.

[00:36:19] Yeah that's not a great sounding excuse but I don't know maybe there's some legality to that. There is agency law is complicated but yeah sometimes if you're acting as an agent for someone else then they would ultimately be held liable and maybe you wouldn't.

[00:36:37] But the fact of the matter is Florida courts have held that an agent may be individually liable for torts committed even while the agent was acting on behalf of someone else.

[00:36:49] So a lawyer in that situation has to be careful because they can't just do whatever they want and say or you know do whatever the client wants and then turn back and say well they were telling me to do it. Is that essentially it. That's essentially it.

[00:37:01] Let's say I'm a lawyer representing Anya and she really doesn't want to get the speeding ticket and she knows there was a witness in the car who heard her say oh boy now I'm going to speed. And she says Kevin you're my lawyer go murder that witness.

[00:37:18] Jesus Christ. If I did that if I was foolish enough to do that I couldn't say well it not my fault I was just following Anya's orders. Geez what if I what if we.

[00:37:31] Okay first of all I was like oh nice a nice little normal story about me doing something bad that's not totally crazy and now it escalated into a murder for hire plot where you're a lawyer slash hit man.

[00:37:43] So but second of all if we make that a little bit less extreme of a story let's say I tell you let's let's do a smear campaign where we libel them and say they're always lying like look at all the you know look at all these time and then you do that on my behalf.

[00:37:57] It's a little bit less bloody but it's still illegal would that be something where you could be still potentially yes yes okay. So those were the affirmative defenses provided by Bertolino that I found most interesting now let's look at the defenses per provided by the laundry family.

[00:38:21] And I want to say that these these defenses offered by the laundry is they filed them separately, but they both basically copied and pasted each other's defenses so I think some of the ones that I'm reading come from Mrs.

[00:38:37] Laundries but keep in mind that her husbands basically said the same thing. Okay. First defense failure to state a claim upon which relief may be granted.

[00:38:48] The second amended complaint fails to state a claim upon which relief may be granted and does not allege facts sufficient to state a violation of the laws alleged or which entitled the plaintiffs to damages as Roberta laundry had our duty due and owing to the plaintiffs.

[00:39:03] Her conduct was not outrageous and or was privileged and such other defenses is stated in the laundry's motion to dismiss the second amended complaint. She's basically saying we didn't have a duty to act and the actions we did take we don't think they were outrageous.

[00:39:23] Second defense illegality to the extent any violations occurred the illegality of third parties caused the alleged damages. So I guess we speculate are we going to assume Brian Laundries Ryan laundry caused the emotional distress. Yes, not us. Yes.

[00:39:44] Third defense non party fault and proximate cause to the extent any violations occurred the actions of non parties caused the alleged damages and Roberta laundry was not the proximate cause of the alleged damages.

[00:40:00] So again, the implication there is it was my son Brian that killed Miss Petito. It wasn't me. So tough luck. Yeah, I'm not at fault for anything I did.

[00:40:13] Fourth defense absence of intent and malice the conduct alleged of Roberta laundry towards plaintiffs if any such conduct existed was neither intentional nor willful and lacked malicious intent.

[00:40:29] I wasn't deliberately trying to hurt them or cause them distress. So if I did, it was just accidental. Does that matter? I'm like from a legal perspective.

[00:40:39] I mean, I'm not talking about morally. I'm talking about from a legal perspective. Does does intent matter here in this situation? They were alleging that it was intentional infliction of emotional distress.

[00:40:49] So what what the Petito family what Gabby's family is arguing is how could you not know that not telling us where to find her and putting out statements saying, well, we hope it all works out for you would be intentional distress.

[00:41:07] And what the what the laundry family is arguing is it wasn't our goal to hurt you with those statements. Yeah, basically do you find that a compelling argument? No, not at all. Here's my problem with this case. I don't.

[00:41:23] What's that phrase? Hard cases make bad law. You know, when you see a horrible situation like this happen, you know, you don't necessarily want to just say, well, you know, let's like let's legislate and make rules around this.

[00:41:36] So because you might end up going overboard and then it maybe it hurts people in the future from being able to represent their clients vigorously or, you know, from kind of exercising their rights and whatnot.

[00:41:49] But at the same time, like in this specific situation, I don't know just from a just from a purely moral non legal perspective. I mean, this is a horrible, horrible thing to do to any family. And I don't I don't understand why they acted this way.

[00:42:03] I'm not going to go through all of these defenses because some of them are a bit repetitive or frankly, not very interesting. But I do want to hit a couple more.

[00:42:13] Ninth defense duress, the effects of the behavior of non defendants external pressure and or circumstances not created by the defendant affected her subjective intent to act.

[00:42:28] So I was in an awful situation. I was under a lot of pressure. So cut me some slack. That's how I interpret that. Is that how you read that? Yes, is that is that again, is that like a valid legal thing? I guess in certain situations.

[00:42:41] So now, as I said, a lot of these defenses, I didn't find terribly interesting. We skipped over some of the others. I do want to mention that all of the defenses she cites were also cited by her husband, but her husband added a defense she did not have.

[00:42:58] And so let's highlight what that defense is from Mr. Laundry. 11th defense agency. At all relevant times, defendant Steven Bertolino was not acting as an agent for the defendants and or was not acting within the real or apparent scope of his client's business.

[00:43:21] Whoa, a minute ago, we had Mr. Bertolino saying you should cut me some slack because I was acting as the Laundry's family's agent. And now we have Mr. Laundry saying he wasn't acting as our agent.

[00:43:36] I guess the implication would be we did not tell him to make this statement. And if you think the statement was the outrageous act and we didn't authorize that, we shouldn't be held responsible for that. What do you make of that? It's interesting.

[00:43:51] Would I mean, I would imagine that they would need to have some evidence to back that up. I would imagine so.

[00:43:57] Because and like, do you envision a scenario when a wave of lawyer like where a lawyer just totally goes rogue and says I feel stressed out because all of these reporters are reaching out to me.

[00:44:10] Let me make a statement that then blows up in my face legally later. Like, do you see that happening? It's possible. I would be curious if that was the case. Is there any evidence of it?

[00:44:22] Is there any evidence that the Laundry family tried to rate him in afterwards? Is there any evidence that the Laundry family at any point tried to publicly retract that statement or say, hey reporters, you know what Bertolino said about wanting the search to be successful?

[00:44:39] Well, we don't believe that. We don't want it to be successful. Did he try to disavow it anyway? So he raises some interesting questions. So it's an interesting case. Another question for that would be if they say this but then they didn't fire him at the time.

[00:44:56] Does that go against that claim? We have to see what's in the evidence. So they send him a bunch of text being like, what did you do? Is that or are there emails or there's anything of that nature that would benefit them?

[00:45:07] Whereas if there's nothing and then suddenly they're just pulling that out and saying, well, he just went off the rails. Then that's not so not so convincing, I suppose. I think that's the gist of what's currently going on in the case.

[00:45:22] There's certainly another one we're going to keep an eye on. It's very, very sad and again this case got so much coverage at the time. And you know it then the outcome resulted in there being no criminal trial obviously against Brian Laundry.

[00:45:40] But obviously, I mean this family went through so much pain and suffering as a result of the situation. And I'll be very curious to see what the outcome of this. As you said there's some really interesting legal questions here.

[00:45:57] But from a purely just like looking at it from the outside without the lens of the legal system, it's bad. I mean it's just what a horrible thing to do to another family.

[00:46:08] And it just seems perhaps one of the most striking aspects of it is how pointless it was, how it didn't even protect the person that they were seemingly trying to protect.

[00:46:20] In fact, given that he ended up taking his own life, it just seemed to make a tragic situation worse. We will keep an eye on it and let you know of further developments and thanks to all the people who suggested that we cover it.

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