The roommate of Tennessee football player Josh Smith has threatened a $3 million civil lawsuit if the player and his family don’t pay $875,000 in compensatory and punitive damages by Tuesday, May 29, stemming from a May 5 fight in the house they shared.
Kennedy Foster, a childhood friend of Smith’s, suffered a broken nose, broken teeth, and damage to his eyes and right ear, according to claims by his attorney, George Underwood Jr.
The Confidential Settlement Demand Letter was delivered May 22 by Underwood to Keith Stewart, the Smith family attorney. Butch Smith, Josh’s father, had been out of town and did not receive he document until early Sunday morning.
Josh Smith was charged with domestic violence and was arrested at UT Medical Center, where Foster was being treated. Foster was taken to the hospital by Josh’s parents, Butch and Jennifer Smith.
“I’m not accusing him (Foster) of extortion, but that’s what it looks like,’’ Stewart said. “Given my understanding that Mr. Foster’s attempts to press charges against Malcolm Stokes were unsuccessful, it seems his motives are clear.’’
Stokes was one of four roommates in the house at 4228 Crosby Lane.
According to the incident report, Foster, Smith and Stokes had been drinking on May 5, Cinco de Mayo Day. Foster apparently wasn’t feeling well and went to the bathroom in his bedroom. When Foster would not respond to Smith trying to check on Foster, Smith kicked the door down. A fight ensued among Foster, Smith and Stokes.
Smith is alleged to have kicked Foster in the face multiple times.
The facts of the case have been disputed by Foster and the Smith family. While not going line by line, Stewart said he disagrees with many of the allegations in the settlement document.
“I think when the truth comes out,’’ Stewart said, “Josh will be exonerated.’’
Josh Smith has gone before the UT Student Code of Conduct board but a verdict has not been rendered, according to Butch Smith. The senior receiver has taken alcohol anger management classes. It is not known if Josh Smith has been punished by UT head coach Butch Jones.
At the time of the incident, Foster and Stokes had been working for Butch Smith’s business for about a year. When Foster filed an order of protection against Stokes, Butch Smith told Foster he should take a “leave of absence’’ until the incident is settled.
On May 6, the morning after the Foster-Smith fight, Foster’s parents, Jerry and Joey, visited the home of Butch Smith, apparently seeking a “job for life,’’ according to sources.
Sources also said Foster and Josh Smith, while at the hospital, took blame for the fight.
In the settlement demand letter to Joshua Smith, Underwood writes, “as a result of your conduct outlined above, it is my legal opinion that a reasonable and fair minded jury would find that you are liable for the serious bodily injury to Mr. Foster under numerous civil laws’’ including assault, battery, trespassing, spoliation of evidence, invasion of privacy and intentional infliction of emotional distress.
“Because your conduct was intentional, knowing, malicious or reckless, you are also subject to punitive damages under Tennessee law in addition to compensatory damages for Mr. Foster’s pain, suffering, disfigurement, permanent injury, emotional distress, humiliation, embarrassment, economic loss for medical bills … loss of wages and other damages.
“The purpose of this letter is to communicate the settlement demand of Mr. Foster to privately settle this case now without filing the public lawsuit against you. …’’
The settle demand asks for a cashier’s check for $875,000 for Kennedy Foster and Underwood to be received by 5 p.m. May 30 as well as a “letter of sincere apology’’ to Foster.
The settlement demand letter says if the check isn’t received by 5 p.m. May 30, then the offer is withdrawn, and within 90 days, a civil suit seeking $1.5 million in compensatory damages and another $1.5 million in punitive damages will be sought.
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