MICHAEL B. ANDERSON
RICHARD G. PHILLIPS
ANDERSON & LIECHTY, P.C.
175 N. 27th Street, Suite 1303
P.O. Box 3253
Billings, Montana 59103
Telephone: (406) 254-8904
Facsimile: (406) 254-8905
Attorneys for Plaintiffs
MONTANA THIRTEENTH JUDICIAL DISTRICT YELLOWSTONE COUNTY
GORDON BELCOURT & CHERYL
BELCOURT, Personal Representatives of
the
ESTATE OF ELENA K. BELCOURT,
individually and on behalf of the minor
siblings of ELENA K. BELCOURT, ALEX
BELCOURT and SIENNA BELCOURT;
SOL BELCOURT, PAUL BELCOURT,
BEN
BELCOURT,
ANNIE
BELCOURT-DITLOFF,
JAIME
BELCOURT and CHERIE WILSON and
JON WILSON,
Plaintiffs,
a and
s VICTOR
VAN
M KENNED
Y Y, and
R JOHN
O DOES
N 1-5,
W
E
SDefendants.
L
E
Y
vs.
STATE OF WYOMING, KELLY INNS,
LTD.,
MYR
ON
FALL
S
DOW
N, JR.
also
known
COMPLAINT
PAGE 1
F
A
L
L
S
D
O
W
N
,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
))
)
)
)
)
C
a
u
s
e
N
o
.
J
u
d
g
e
:
C
O
M
P
L
A
I
N
T
F
O
R
:
N
E
G
L
I
G
E
N
C
E
-
COMPLAINT
PAGE 2
WRONGFUL DEATH & SURVIVAL,
PERSONAL INJURY;
VIOLATION OF FEDERAL & STATE
CONSTITUTIONAL RIGHTS;
PUNITIVE DAMAGES
and
JURY DEMAND
Plaintiffs allege:
JURISDICTION AND VENUE
1.
This Court has jurisdiction over the persons and subject matter of this action
because Plaintiffs and Defendants Falls Down and Kennedy are residents of the State of
Montana. Defendant State of Wyoming is subject to jurisdiction of this state by reason of the
commission of acts which resulted in the accrual within Montana of a tort action. Defendant
Kelly Inns, Ltd. and John Does 1-5 are subject to jurisdiction by reason of transaction of business
within the State of Montana or ownership or management of property located within the State of
Montana.
2.
Plaintiffs bring this action pursuant to the laws of the State of Montana, 42
U.S.C. §1983 and 1988, the Fourteenth Amendment to the United States Constitution, and
Article II of the Constitution of the State of Montana.
3.
Venue of this matter is properly in Yellowstone County because Elena Belcourt’s
death and Cherie Wilson’s abduction occurred in Billings, Yellowstone County, Montana.
PARTIES
4.
Cheryl Belcourt and Gordon Belcourt are the parents of Elena K. Belcourt and
duly appointed personal representatives of her estate.
They bring this action in their capacity
as personal representatives of their daughter’s estate, individually in their own behalf, and as
parents of their minor children Sienna Belcourt and Alex Belcourt. The remaining surviving
siblings of Elena K. Belcourt are: Sol Belcourt, Paul Belcourt, Ben Belcourt, Annie
COMPLAINT
PAGE 3
Belcourt-Ditloff and Jaime Belcourt, who join in this claim for their personal injuries, loss of
care, comfort and companionship from their sister, Elena K. Belcourt.
5.
Cherie Wilson is the survivor of the matters alleged in this Complaint, detailed
below. Jon Wilson is her father.
6.
At the times of the acts giving rise to these claims, Defendant State of Wyoming,
through its Department of Corrections, operated the Wyoming State Penitentiary at Rawlins,
Wyoming. Defendant State of Wyoming maintained legal custody of Defendant Fallsdown,
who was incarcerated as an inmate at the Wyoming State Penitentiary until his release on
January 25, 2001. Defendant State of Wyoming employed Teddy A. Yockey as a correctional
officer at the Wyoming State Penitentiary.
7.
Kelly Inns, Ltd. is the owner and/or company responsible for the management and
security of the Kelly Inn located at Billings, Montana at which Elena K. Belcourt was killed and
from which Cherie Wilson was abducted.
8.
Defendant Fallsdown was sentenced by the State of Wyoming on July 7, 1998 to
serve a term of imprisonment in the Wyoming State Prison for a period of not less than 3 years,
nor more than 4 years for the offense of robbery. He was released from custody by the State of
Wyoming on January 25, 2001. He was convicted of the offenses of deliberate homicide,
kidnaping, sexual intercourse without consent, and aggravated assault for his role in the events of
January25- 26, 2001.
9.
Defendant Victor Van Kennedy was Defendant Fallsdown’s accomplice in the
events of January 26, 2001, and participated in the deliberate homicide of Elena K. Belcourt and
the pistol whipping, kidnaping and sexual assaults on Cherie Wilson. He was convicted of
COMPLAINT
PAGE 4
sexual intercourse without consent for his role in the events of January 25-26, 2001.
10.
John Does 1-5 are individuals or entities, whose identities are presently
unknown, which may have an ownership, management or other interest in the Kelly Inn
located in Billings, Montana, or who were responsible for security of the premises at the time of
the incidents which form the basis for this Complaint.
FACTS COMMON TO ALL CLAIMS
11.
Defendant State of Wyoming’s employee, Teddy A. Yockey, commenced an
intimate relationship with Defendant Fallsdown, during the time he was incarcerated at the
Wyoming State Penitentiary.
12.
On or about January 25, 2001, Defendant Fallsdown was released on parole or
probation from the Wyoming State Penitentiary. Ms. Yockey agreed to provide vehicles and
transportation to Defendant Fallsdown to Hardin, Montana. Ms. Yockey also provided
Defendant Fallsdown with two handguns, a vehicle and an undisclosed, but substantial amount
of cash.
13.
On their way to Hardin, Montana, Ms. Yockey and Defendant Fallsdown made
several stops, during which Mr. Fallsdown purchased and consumed alcohol and marijuana.
They arrived in Hardin, Montana approximately 7:30 p.m.
14.
When they arrived in Hardin, Ms. Yockey left Defendant Fallsdown in the
possession of the firearms and truck.
15.
Defendant Fallsdown proceeded to visit friends in Hardin and consumed
additional intoxicants.
COMPLAINT
PAGE 5
At the time he left, Ms. Yockey knew that Defendant Fallsdown was
under the influence of alcohol or drugs. She knew, or reasonably should have known, that he
was still in possession of the two handguns. She knew, or should have known, that it was
against the terms and conditions of Defendant Fallsdown’s probation or parole, as a convicted
felon, to be under the influence of alcohol or drugs or to be in the possession of firearms.
16.
Defendant Fallsdown and a relative, Defendant Victor Van Kennedy, drove Ms.
Yockey’s truck from Hardin, Montana to Billings, Montana. There, they met a vehicle in which
Elena Belcourt and Cherie Wilson were passengers. Defendants Fallsdown and Kennedy told
the occupants of the other vehicle that they were in town for a basketball tournament. The other
vehicle occupants agreed to follow Defendant Fallsdown to the Kelly Inn at Billings, Montana.
Defendant Kelly Inn Ltd.’s employee permitted them to register for a room. Elena Belcourt,
Cherie Wilson, Defendants Fallsdown and Kennedy and another male went to their assigned
room at the Kelly Inn. Shortly after entering the room, Defendant Fallsdown brandished one of
Ms. Yockey’s handguns in a threatening manner at the male so that he left the room.
17.
After Defendants Fallsdown and Kennedy were alone in the motel room with
Elena Belcourt and Cherie Wilson, there were words exchanged between Elena Belcourt and
Defendant Fallsdown. Then, with one of the handguns supplied by Ms. Yockey, Defendant
Fallsdown shot and killed Elena Belcourt. Elena Belcourt only had time to close her eyes before
being shot, but was aware of her imminent death for a sufficient time to experience severe
emotional distress. After being shot, Elena Belcourt survived a short, but appreciable amount of
time before dying.
18.
The front desk of the Kelly Inn was sufficiently close to the room in which the
pistol discharged so as to be heard.
COMPLAINT
PAGE 6
19.
Defendant Fallsdown then pointed the pistol at Cherie Wilson, and pulled the
trigger twice. It misfired. Cherie Wilson believed she would be shot and killed, and suffered
extreme and intolerable emotional distress. Defendant Fallsdown then ordered Defendant
Kennedy to shoot Cherie Wilson with the other handgun, which had been supplied by Teddy
Yockey. He refused. Defendant Fallsdown then proceeded to pistol-whip Cherie Wilson,
injuring her and causing her extreme physical and mental pain and suffering.
20.
Defendants Fallsdown and Kennedy, using the handguns supplied by Ms.
Yockey, forced Cherie Wilson out of the Kelly Inn motel room, down the hallway to an exit.
Cherie Wilson’s clothing was blood-covered, and her departure in the company of two males
was made in a manner which would have been visible and would have raised a suspicion in any
reasonably prudent person that she may have been injured or was being forcibly removed from
the premises. The front desk was sufficiently close to the room and hallway, or surveillance
cameras that their departure from the motel room would have been noticed by a properly trained
or observant front desk clerk.
21.
If Kelly Inn had employed a reasonable number of security guards, and had such
guards performed their security duties in a reasonably prudent manner, the discharge of the pistol
or the forced departure of Defendants Fallsdown and Kennedy and Cherie Wilson should have
been observed and noted.
22.
No one at the Kelly Inn noted or reported any gunshots or the departures of the
occupants of the room into which Defendants Fallsdown and Kennedy or Elena Belcourt or
Cherie Wilson had checked in.
23.
COMPLAINT
PAGE 7
Cherie Wilson was forced against her will into the pickup truck of Ms. Yockey by
Defendants Fallsdown and Kennedy. She was frightened for her safety. Shortly after leaving
Billings, Defendant Fallsdown raped and assaulted Cherie Wilson, causing her additional
injuries, emotional distress, humiliation and pain and suffering. At Park City, Montana,
Defendant Fallsdown took over the driving, and Defendant Kennedy then forcibly raped and
assaulted Cherie Wilson. They stopped for gas at Livingston, Montana. Defendant Kennedy
left Cherie Wilson and Defendant Fallsdown in the truck while he entered station and paid for
the gas. Defendant Kennedy made no attempt to report that he was an unwilling participant in
the events which had happened, and he resumed driving the truck from Livingston toward Butte,
Montana. Defendant Fallsdown again raped and assaulted Cherie Wilson.
24.
Cherie Wilson seized a moment of inattention by her captors and dove out of the
moving truck at Butte, Montana, where she fled to safety. Her rescuers called law enforcement
authorities.
25.
Defendants Fallsdown and Kennedy continued their escape, until they were
apprehended by law enforcement officials in Beaverhead County, Montana.
Plaintiffs believe
that they threw the murder weapon out of the truck at some point between Billings and Dillon,
Montana.
26.
Defendants Fallsdown and Kennedy were convicted of the crimes set forth in
Paragraphs 8 and 9, above, arising out of the events of January 25-26, 2001.
27.
Ms. Yockey entered a guilty plea in federal district court indictment of aiding and
abetting a felon in possession of a firearm.
COUNT ONE - NEGLIGENCE, WRONGFUL DEATH AND SURVIVAL CLAIMS
VS. STATE OF WYOMING
COMPLAINT
PAGE 8
28.
Plaintiffs incorporate Paragraphs 1 through 27 in this Paragraph as though set
forth in full in this Count.
29.
Defendant State of Wyoming, through its Department of Corrections, has a
special relationship with inmates in its custody, and therefore a duty to protect members of the
general public, including Plaintiffs, who would be placed within the foreseeable zone of risk of
serious harm posed by such inmates.
30.
Defendant State of Wyoming’s duty includes a duty to adopt and to implement
reasonable policies, procedures and practices to assess or to monitor the dangerous propensities
of inmates within its custody and control, including Defendant Fallsdown, prior to their release.
The duty includes adoption and implementation of reasonable policies, practices and procedures
to assure that a release of an inmate can be made without a reasonably foreseeable risk of serious
harm to others, or upon conditions of release which will reasonably protect others from such risk
of harm. Such duties existed at the time of the incarceration and release of Defendant
Fallsdown.
31.
Defendant State of Wyoming has a duty to adopt and implement reasonable
policies, practices and procedures to insure that members of the public are safe from the
premature or inappropriate release of inmates in the custody of its prison.
32.
Defendant State of Wyoming, and its Department of Corrections, has a duty to
investigate whether other states have pending charges or supervisory control over inmates
proposed to be released by the Wyoming Department of Corrections prior to the release of an
inmate. In the event that other states have pending charges or supervisory control over inmates,
COMPLAINT
PAGE 9
Defendant State of Wyoming has a duty to inform other states of the prospective release of
inmates within its custody prior to the release of an inmate. Without limitation, both Montana
and Wyoming participate in the Western Interstate Corrections Compact, which provides, among
others, that each party state may make contracts with other party states for the confinement of
inmates and that such contracts shall provide for delivery and retaking of inmates and such other
matters as may be necessary and appropriate to fix the obligations, responsibilities and rights of
the sending and receiving states. §46-19-301, Mont. Code Ann.; §7-3-401, Wyoming Statutes.
33.
Prior to Defendant Fallsdown’s release from the Wyoming State Penitentiary, the
State of Wyoming knew, or should have known, that the State of Montana had requested that it
be notified, or otherwise was entitled to be notified, of the fact and proposed date of Defendant
Fallsdown’s release from prison. Defendant State of Wyoming failed to take reasonable steps to
notify the State of Montana of the date, or changes in the date, of Defendant Fallsdown’s
proposed release from the Wyoming State Prison.
34.
Defendant State of Wyoming, and its Department of Corrections, has a duty to
exercise reasonable care in the selection, hiring, training, retention and supervision of its
employees at the Wyoming State Prison, including Teddy A. Yockey. It has a duty to monitor
its correctional officers to determine that their policies and procedures are followed and that they
are not involved in inappropriate relationships with inmates, and to take steps to terminate such
relationships or to terminate the employment of correctional officers involved in inappropriate
relationships with inmates.
35.
Defendant State of Wyoming either failed to perform or was negligent in its
performance of the duties set forth above. Defendant State of Wyoming failed to consider or act
COMPLAINT
PAGE 10
upon information available to it regarding the dangerous propensities of Defendant Fallsdown
and the inappropriate relation between its correctional officer, Ms. Yockey and Defendant
Fallsdown.
36.
Defendant State of Wyoming is liable for the actions or failure to act by its
employee Teddy A. Yockey. Such actions include, but are not limited to, Ms. Yockey’s:
a.
Commencing an inappropriate intimate relationship with an inmate while
performing duties as a correctional officer and employee of the Wyoming State
Prison;
a.
Failing to exercise reasonable care to abide by the policies and procedures
implemented by the Wyoming State Prison;
b.
In the absence of express policies and procedures, failing to meet the minimum
standards of reasonable care to be expected of a corrections officer;
c.
Providing firearms to a felon;
d.
Providing a vehicle to a felon whom she knew to be impaired by the use of
alcohol or drugs, in the possession of firearms, and in violation of his probation or
parole;
e.
Failing to report the violations of a felon on probation or parole to law
enforcement;
f.
Failing to terminate the permissive use of her vehicle, firearms and money, or to
report such use by a felon.
COUNT TWO - VIOLATION OF CONSTITUTIONAL RIGHTS
COMPLAINT
PAGE 11
VS. STATE OF WYOMING
37.
Plaintiffs incorporate Paragraphs 1 through 36 in this Paragraph as though set
forth in Full in this Count.
38.
The actions of the State of Wyoming reflect adoption of a custom or policy which
it officially sanctioned, constituting a deprivation of Plaintiff Estate of Elena K. Belcourt and
Cherie Wilson’s constitutionally protected rights, including (but not limited to) their
constitutional right not to be deprived of life, liberty or property without due process of law
under the 14th Amendment of the Constitution of the United States and Article II, Section 17 of
the Constitution of the State of Montana, as well as their rights under the Constitution of
Montana to individual dignity, Article II, Section 4; to a remedy for every injury of person,
property or character, Article II, Section 16; and waiver of governmental immunity, Article II,
Section 18.
39.
Actions of the State of Wyoming with respect to the incarceration and release of
Defendant Fallsdown and the employment of corrections officer Teddy A. Yockey were
undertaken under color of state law.
40.
Actions of Teddy A. Yockey were taken in her official capacity as a corrections
officer of the State of Wyoming or under color of state law.
41.
The actions of Defendant State of Wyoming with respect to the incarceration and
release of Defendant Fallsdown and the employment of corrections officer Teddy A. Yockey
reflect a policy or practice of deliberate indifference toward the constitutionally protected rights
of the public in general, as well as Plaintiffs.
COMPLAINT
PAGE 12
42.
The actions of Defendant State of Wyoming with respect to their policies and
practices regarding the hiring, training, monitoring, supervision and retention of employees, and
in particular corrections officer Yockey reflect a policy or practice which deprived Plaintiffs of
their constitutionally protected rights. Defendant State of Wyoming’s actions also reflect a
policy or practice of deliberate indifference toward the constitutionally protected rights of the
public in general, as well as Plaintiffs.
43.
The actions of Defendant State of Wyoming and its correction officer were the
cause, or were a substantial factor in causing, the deprivation of the rights guaranteed to
Plaintiffs under the United States Constitution and Constitution of the State of Montana.
44.
Plaintiffs are entitled to general and special damages by reason of Defendant’s
violation of the rights guaranteed to Plaintiffs under the United States Constitution, 42 U.S.C. §
1983 and § 1988, and Article II of the Constitution of the State of Montana.
COUNT THREE - NEGLIGENCE, WRONGFUL DEATH AND SURVIVAL
AGAINST DEFENDANTS KELLY INNS, LTD. AND JOHN DOES 1-5
45.
Plaintiffs incorporate Paragraphs 1 through 27 in this Paragraph as though set
forth in full in this Count.
46.
Defendant Kelly Inns, Ltd. and Defendants John Does 1-5, as persons
responsible for the ownership, management or security of the Kelly Inn, Billings, Montana have
a duty to use ordinary care in maintaining the premises in a reasonably safe condition and to
warn of any hidden or lurking dangers. Such duty extends to accidental, negligent or
intentionally harmful acts of others who would foreseeably visit, use or occupy the premises and
COMPLAINT
PAGE 13
the types of hazards or unsafe conditions which might foreseeably occur at the premises,
including (but not limited to) physical injury or the commission of crimes. Defendants’ duties
include a duty to assess and anticipate the types of hazards which might be posed at the premises.
47.
Defendant Kelly Inns, Ltd. and Defendants John Does 1-5, as persons
responsible for the ownership, management or security of the Kelly Inn, Billings, Montana owed
guests a duty to assess the risk of crime or bodily injury at its premises, and to implement a
program of security which would protect its guests from bodily injury or, alternatively, to
monitor and to report suspected crimes or injuries promptly to law enforcement officials.
48.
Defendant Kelly Inns, Ltd. and Defendants John Does 1-5, as persons
responsible for the ownership, management or security of the Kelly Inn, Billings, Montana owed
guests a duty to staff its facility with adequate trained staff or security or monitoring devices so
as to protect its guests from bodily injury or crime, or alternatively, that such staff or security
could monitor and report suspected crimes or injuries promptly to law enforcement officials.
49.
Defendant Kelly Inns, Ltd. and Defendants John Does 1-5, as persons
responsible for the ownership, management or security of the Kelly Inn, Billings, Montana owed
guests a duty to exercise due care in the hiring, training, supervision and training of staff to fulfill
its duty to its guests to provide it with a premises safe from foreseeable risks of crime or bodily
injury.
50.
Defendant Kelly Inns, Ltd. and Defendants John Does 1-5, as persons
responsible for the ownership, management or security of the Kelly Inn, Billings, Montana owed
guests a duty to repair broken, inoperative or outdated security devices in a prompt and efficient
manner.
COMPLAINT
PAGE 14
51.
Defendant Kelly Inns, Ltd. and Defendants John Does 1-5, as persons
responsible for the ownership, management or security of the Kelly Inn, Billings, Montana duties
set forth above included its guest rooms, common areas such as the lobby and hallways and its
parking areas.
52.
Defendant Kelly Inns, Ltd. and Defendants John Does 1-5, knew or in the
exercise of reasonable care, should have known or learned of the shooting which occurred on
their premises, and the injury and abduction of Cherie Wilson from the motel room and motel
parking lot, so as to report the incident or suspected crime to law enforcement agencies within a
reasonable time after their occurrence. Had Kelly Inns, Ltd. and Defendants John Does 1-5
exercised such reasonable care, the continued abduction of Cherie Wilson and the repeated
assaults on her may not have occurred, or would have been prevented.
53.
Defendant Kelly Inns, Ltd. and Defendants John Does 1-5, as persons
responsible for the ownership, management or security of the Kelly Inn, Billings, Montana
breached their duties to Elena K. Belcourt and Cherie Wilson.
54.
The breaches of duties set forth above by Defendant Kelly Inns, Ltd. and
Defendants John Does 1-5, as persons responsible for the ownership, management or security of
the Kelly Inn, Billings, Montana were the cause, or a substantial factor in causing the injuries
and damages sustained by Elena K. Belcourt and Cherie Wilson.
INTENTIONAL TORTS OF DEFENDANTS FALLSDOWN AND KENNEDY
COMPLAINT
PAGE 15
55.
Plaintiffs incorporate Paragraphs 1 through 27 in this Paragraph as though set
forth in full in this Count.
56.
Defendants Fallsdown and Kennedy’s intentional acts were the cause, or a
substantial factor in causing the injuries and damages sustained by Plaintiffs.
COMPLAINT
PAGE 16
DAMAGES CLAIMED
57.
Plaintiffs incorporate Paragraphs 1 through 56 in this Paragraph as though set
forth in full in this Count.
58.
Prior to her death, Elena K. Belcourt suffered emotional distress, fear, injury,
physical and mental pain and suffering as a result of the actions or inaction of Defendants.
Elena K. Belcourt survived a short, but appreciable amount of time before dying.
59.
Cherie Wilson suffered emotional distress, fear, injury, physical and mental pain
and suffering as a result of the actions or inaction of Defendants. She will suffer future
emotional distress, fear, physical and mental pain and suffering.
60.
By reason of Defendants’ actions or inaction, Elena K. Belcourt, her estate and
surviving parents and siblings are entitled to recover damages for her survival, as provided by
law. Without limitation, such damages include the present value of her reasonable earnings
during her life expectancy, funeral expenses incurred by her family, and reasonable
compensation for her pain and suffering and other general and special damages.
61.
Plaintiffs, including the individual family members of the Belcourt family, are
entitled to recover damages for the wrongful death of Elena K. Belcourt, including loss of
consortium, emotional distress, loss of comfort and society of Elena K. Belcourt and other
general and special damages.
62.
Defendants’ actions were the cause or a substantial factor in causing Plaintiff Jon
Wilson’s emotional distress, fear, physical and mental injuries, for which he is entitled to recover
general and special damages, including (but not limited to) damages for mental pain, past and
COMPLAINT
PAGE 17
future pain and suffering, past and future loss of an established course of life, past and future
loss of enjoyment of life.
63.
Plaintiffs are entitled to recover damage provided by law for the violation of their
state and federal constitutional rights.
Plaintiffs are entitled to recover such other damages as may be provided by law.
PUNITIVE DAMAGES
65.
Plaintiffs incorporate Paragraphs 1 through 64 in this Paragraph as though set
forth in full in this Count.
66.
Defendants’ actions were characterized by actual fraud or actual malice in their
actions, in that they had knowledge of facts or intentionally disregarded facts which created a
high probability of injury to the interests of Plaintiffs and deliberately proceeded to act in
conscious or intentional disregard of, or with indifference to, the high probability of injury to
Plaintiffs.
67.
Plaintiffs are entitled to recover punitive damages as provided by law.
REQUEST FOR TRIAL BY JURY
68.
Plaintiffs request a trial by jury.
WHEREFORE, Plaintiffs request the following relief:
COMPLAINT
PAGE 18
1.
For such general and special damages as may be provided by law for the wrongful
death and survival of Elena K. Belcourt by reason of the negligence of Defendants;
2.
For such general and special damages as may be provided by law for the personal
injuries and damages suffered by Cherie Wilson and Jon Wilson by reason of the negligence of
Defendants;
3.
For punitive damages in an amount sufficient to serve as an example and deter
similar conduct in the future;
4.
For Plaintiffs’ reasonable costs and attorneys’ fees incurred herein;
5.
For such further relief as may be just and proper.
DATED this 21st day of January, 2004
ANDERSON & LIECHTY, P.C.
BY:
Michael B. Anderson
Richard G. Phillips
175 N. 27th St., Ste. 1303
Billings, MT 59103-3253
Attorneys for Plaintiffs
COMPLAINT
PAGE 19