Cal Poly rejects Kristin Smart family’s wrongful death lawsuit

April 8, 2024

By KAREN VELIE

In an attempt to get the San Luis Obispo Superior Court to toss a lawsuit accusing Cal Poly of wrongful death, negligence and negligent infliction of emotional distress in the death of Kristin Smart, the university filed a demurrer. Demurrer means “so what,” it doesn’t matter if everything in a complaint is accurate, the plaintiff has no case.

Paul Flores murdered Smart during an attempted rape in 1996 following a Cal Poly frat party. After the party, Flores helped escort Smart, who was found passed out on a lawn outside the party, back to the dorms. She was never seen again and her body was not recovered.

In 2022, a jury found Flores guilty of the murder of Smart.

The Smart family filed a lawsuit in January that accuses Cal Poly of failing its legal duties because it “did not pursue a missing person case promptly, did not interview witnesses timely, did not seal the primary suspect’s dorm room as a crime scene, allowed the suspect’s room to be sanitized and cleaned before it was searched, and did not search the suspect’s room until sixteen days after Smart disappeared.”

Even though Smart was killed in 1996, the Smart family argues the 2024 suit is timely because they were not aware of Cal Poly’s failures until May 2023, when Cal Poly’s president publicly apologized to the family saying: “We recognize that things should have been done differently – and I personally wish that they had.”

On April 2, on behalf of Cal Poly, the Office of the Attorney General of California asked the court to reject the suit because it fails to provide a statutory basis for liability, lacks standing to sue and is barred by immunity.

First, the state argues the Smart’s lawsuit fails to comply with statutes of limitations and the Government Claims Act. Negligence and wrongful death causes of action have a two-year statute of limitations. In addition, the Government Claims Act requires that a claim for injury is filed within six months of an incident.

“While the statement by President Armstrong is mentioned three times in the complaint, none of the factual assertions that are the basis for the causes of action are attributed to that statement,” according to the demurrer. “The statement did not cause the alleged failure to investigate or the murder.”

Secondly, the state argues the Smart family does not have standing to bring their negligence claim.

“Family members such as parents or siblings, cannot bring negligence causes of action based on a harm suffered by that family member,” according to the demurrer. “Further, the sibling plaintiffs lack standing to bring a claim for wrongful death.”

Lastly, the claims listed in the current Smart family lawsuit were already litigated in their prior lawsuit filed in 1996, which they lost, according to the state.

“The prior lawsuit brought by parent plaintiffs based on the death of Kirstin Smart is an absolute bar to their current claims and the court should sustain the demurrer without leave to amend,” according to the demurrer. “Because of the nature of these failings act as bars to these causes of action, there is no path for curing the defects. This court should sustain this demurrer without leave to amend.”

A hearing on the demurrer is scheduled for August 15.