This file is provided for reference purposes only. It was current when produced, but is no longer maintained and may now be outdated. Please select www.ovc.gov to access current information.

Chapter 8

Civil Lawsuits for Victims of Crime

Abstract: There are two major and distinct components of America's justice system, criminal and civil courts. Criminal courts deal with that aspect of the justice system that determines guilt or innocence in regard to crimes and metes out criminal sanctions. Increasingly, victims are looking to the civil justice system to pursue their own private actions against perpetrators for the recovery of monetary damages.

Learning Objectives: Upon completion of this chapter, the student will understand the following concepts:

1. Be able to describe distinctions between criminal and civil justice systems.

2. Understand the mechanics of the civil justice system.

3. Recognize the types of lawsuits typically brought by victims.

4. Understand the benefits and limitations of victim civil litigation.

Crime victims often suffer great physical and psychological injuries at the hands of their perpetrators. Despite the overall reduction in crime rates during the last decades, the severity of injuries to crime's victims appears to be increasing. Increasingly, victims of crime look to the civil justice system for vindication of their rights and recovery of financial reparations from offenders. The civil justice system may potentially provide victims with the means to find some recovery for, at least in part, the wrongs committed against them.

Civil Versus Criminal Justice

In some ways, the civil justice system is complimentary to the criminal justice system. However, civil justice has numerous distinctions, many of which may be quite beneficial to victims of crime. The discussion below will provide an overview of the civil justice system that is basic to a victim advocate's understanding of this process.

Civil litigation has become increasingly important for victims for various reasons. First, victims often encounter great financial distress due to their victimization. Medical and therapy bills mount up. Often jobs or income -- as well as property and other assets -- are lost. The civil justice system provides a mechanism for victims to seek recovery for losses resulting from their victimization.

Civil Litigation Can Empower Victims

The recovery of financial benefits, although extremely important, is not the only reason victims look to civil litigation. Civil litigation can empower victims. Victims whose lives are seemingly spinning out of control as a result of a criminal victimization can use the civil court and their greater control of this process to help put their lives back in balance. Also, going to civil court often allows the victim to publicize the acts of the perpetrator. This is very important to many victims who have previously kept their victimizations secret. Further, the recovery of financial benefits reinforces the notion that the victim did suffer significant injuries that it was the perpetrator who was responsible for injuring the victim and, therefore, made to pay for them.

Civil Litigation as a Deterrent to Crime

Civil litigation often provides a crime prevention method. When perpetrators, or other negligent parties involved in creating the conditions of victimization, are made to pay for their violent acts or negligence, these acts are often not repeated. For example, when hotels are ordered to pay money damages for their lack of adequate security that causes rapes or assaults to occur, they often respond by improving security to avoid future lawsuits. This is true of many other institutional or third party defendants who have had to pay damages in negligence suits.

As stated above, the civil justice system is in many ways similar to the criminal justice system that most victim advocates are more familiar with.

• In a civil suit, the perpetrator is still referred to as the "defendant", but the victim is now called the "plaintiff".

• Essentially, a legal "action" is commenced by the plaintiff (victim) against the defendant (perpetrator or negligent third party) by "serving" lawsuit papers and filing them in court.

• Subsequently, a period of investigation called "discovery" occurs whereby the details of the matter are investigated by both sides in an effort to provide background information to bolster arguments in a way most favorable to their respective position in court.

• At some point in time a trial is possible, although the vast majority of civil legal actions are settled out of court. Ultimately a "verdict" is reached. The verdict is typically returned by a jury that has sat through the trial listening to the facts as presented in evidence.

• If the verdict results in a "judgment" for the victim, then the victim will attempt to collect the amount now owed to him or her. If the verdict is in favor of the defendant, the victim has lost the trial.

• The legal doctrine of Collateral Estoppel provides that, in some cases, the criminal conviction of perpetrators will be considered proof of those perpetrator's legal liability in civil actions brought by the perpetrator's victims.
  

Victimization as a Tort: A Private Action

When a victim brings a lawsuit, it is typically brought under what is referred to as a "tort" action. As Professor Prosser tell us in his learned treatises The Law of Torts, the word tort is derived from the Latin "tortus" or "twisted". As Prosser states, the metaphor is apparent: a tort is conduct which is twisted, or crooked, not straight . . . broadly speaking, a tort is a civil wrong (Keeton, Dobbs, Keeton, and Owen, 1984).

Essentially, the legal definition of a tort is a private or civil wrong or injury which typically involves the violation of a duty one individual owes to another, often based on the relationship they have to each other. For our purposes here, two distinct kinds of torts will be addressed. The first is an "intention tort" where someone intentionally injures another person. The second kind of tort is a "negligent tort" in which one person fails to perform some duty to care for another person and that causes or contributes to the injury of that other person. These will be discussed in greater detail below.

Proving a Tort Case: Liability

At least two elements must be proven to support a tort claim. One is that of "liability". You first must prove that the defendant is liable in the legal sense, that is, that his or her actions harmed the victim and caused the injury in a legal sense. This is sometimes called the proximate cause of the injuries. The facts one uses to demonstrate liability differ depending upon whether the tort is intentional or negligent. The second aspect that must be proven is that of "damages". Damages are a measurement of what harm has occurred, that is, what are the extent of the injuries suffered by the victim?

First Party and Third Party Litigation

The types of legal actions pursued by victims, and potential sources of financial recovery, also depend upon whether they are suing the perpetrator directly or are bringing their action against another (non-offending) party. This other, so called third-party defendant, who contributed so significantly to the victimization through their negligence, should be held accountable for their contribution to the victimization. This is the difference between "first party" and "third party" litigation.

• In first party litigation, the victim is suing the defendant who is the perpetrator. In third party litigation, the victim is suing another party who is not actually the person who intentionally caused the injuries. First party litigation might be the victim of a sexual assault suing the rapist.

• Examples of third party litigation include cases where the victim suing a landlord or hotel for failing to provide adequate security which created conditions that allowed a rape to occur; or the lawsuit might be against a school for the negligent hiring and poor supervision of an employee who sexually abused children at the school. Other third party lawsuits are brought against government agencies, for example, correction officials or mental health officials for the negligent release of dangerous individuals, or against other kinds of employers who negligently employ and retain persons who victimize other employees or customers.

• It is important to note that there is a significant burden on the plaintiff/victim to demonstrate that the negligent third party was actually negligent. Frivolous "deep pocket" searches are discouraged by the law and courts.
  

Collectibility: Making Judgments Real

One significant aspect of first party versus third party litigation is the issue of collectability. Collectability is a general term which refers to the defendant's ability to pay the judgments rendered against him or her. In first party litigation, where the action is brought directly against the perpetrator of the crime, often the victim is limited to collecting their judgment directly from the assets of the offender. This is because insurance policies that might be available to pay certain kinds of judgments often exclude intentionally committed wrongful acts from coverage and, therefore, payment. (However, as you will see in the insurance section below, this is not always the case.)

Most often, the likelihood of recovering damages on behalf of a victim in first party cases is directly related, at least in large part, to the wealth of the perpetrator. Third party litigation, on the other hand, involves cases that are brought against other entities or institutions that may have adequate resources to pay for victim damages; and, due to the non-intentional nature of their negligence, insurance coverage may apply. This opens up two potential avenues for increasing the likelihood of victim financial recovery:

• Third parties involved in victim litigation tend to be institutions of some financial stability and means (for example, the grossly negligent hotel chain mentioned above).

• Also, these parties are not intentionally committing wrongful acts. Their acts typically are categorized under the rubric of negligent acts. Negligence is generally covered under insurance policies. That means that additional avenues for payment of judgments to victims may be made by insurance companies covering negligent actions.
  

A number of different types of civil lawsuits can be brought by victims against perpetrators depending on the facts of the case. Many of these have direct linkage to criminal charges and others are distinct from the criminal law. Although a civil tort is not a crime, as such, they often are closely related and typically may involve the same event. A brief overview of major types of cases potentially available to victims is listed here. It is important to note that each area, like the other topics discussed in this overview, requires a much more detailed understanding than is available in this brief treatment. It is always important for the victim advocate to obtain competent legal counsel for the victim in the jurisdiction where the matter will be litigated, and not to second guess or otherwise judge the merits of a lawsuit.

Wrongful Death

In the case of a homicide on the criminal side, often a wrongful death suit may be brought on the civil side. A wrongful death suit is a civil action that is brought when one person has killed another person and there is no excuse or other justification for this killing. For example, the law allows us to defend ourselves against the real threat of being killed. Therefore, the defense of self-defense is often used to term a homicide as a justifiable homicide.

Assault and Battery

Assault and battery are historically two separate torts which, in many jurisdictions, have been merged into one civil action. Traditionally, the civil action of assault is when the perpetrator of the crime has intentionally put the victim in fear of being battered. It is important to note that this fear must be a real fear based on the apparent ability of the perpetrator to commit the battery. The companion tort, called battery, is an intentional, offensive, non-consensual touching of the victim by the perpetrator. This touching is usually in the form of a severe injury.

Emotional Distress

Claims for emotional distress are often brought by victims against their perpetrators. It is important to note that the emotional distress claim is one that is distinct from the underlying claim of, for example, assault and battery. This is important because emotional distress claims often have longer statutes of limitations during which time a lawsuit may be brought. This means that if a victim had an underlying lawsuit based on being battered, but that time frame has passed, he or she may still be able to bring an action for the emotional distress that was the result of that underlying battery. Emotional distress may be either intentional or negligent. Intentional infliction of emotional distress occurs when the perpetrator has intentionally caused psychological harm to the victim. Often, the actions of the perpetrator must be considered extreme or outrageous and sometimes are described as "outside the bounds of common decency in normal society." The negligent infliction of emotional distress occurs under similar facts but there was no actual intention to cause the emotional distress, it was caused out of the negligence of the perpetrator.

Other Causes of Action

There are several other theories of personal injury that are sometimes available to victims of crime. These include theories of parental liability where parents may be held civilly responsible for the injuries caused by their children. Negligent entrustment is when one person allows another to use some dangerous instrument when he or she should have known that that other person might cause an injury, and injury does befall the victim. Finally, Civil conspiracy or aiding and abetting are torts that are recognized in some jurisdictions. This is a situation in which persons other than the individual who actually committed the crime so substantially contributed to the perpetrator's ability to commit the crime that they should also be held somehow responsible for assisting the actual perpetrator.

There are numerous activities that occur prior to the commencement of a legal action, perhaps the most important of which is engaging the counsel of a competent attorney. This also illustrates the first significant distinction between the civil justice system and criminal justice system for victims, in that in the civil process victims hire their own attorneys to pursue their actions. In criminal court, the prosecutor is a government employee who brings an action on behalf of the government entity against the alleged perpetrator. That is the second important distinction between civil and criminal procedures.

In civil matters, the case is brought by the victim directly against the perpetrator and is typically captioned "Victim v. Perpetrator" as opposed to the typical criminal action caption of "State v. Perpetrator". This describes what happens in actuality, in that the victim is much more in control of the civil legal action as opposed to being a secondary party, at best, to a criminal prosecution. However, as explained below, this has both costs and benefits for the victim.

• A document called the Complaint is prepared by the victim's attorney in consultation with the victim. This document outlines the various aspects of the victimization for which the victim seeks to bring the defendant into court to address.

• This paperwork is served on the defendant and returned to court, that commences the formal legal action.

• There are numerous other Motions, Requests and other legal paperwork which can be filed by the defendant at this time, and throughout the pendency of the law suit.

• The complaint is typically formally responded to by the filing of an Answer. In the answer, the defendant puts forward his or her responses and defenses to the victim's complaint. Typically, the defendant can admit or deny facts in the complaint, or leave it to the victim to prove his or her case. Also, the defendant can make counter allegations against the victim, a tactic more often used by defendants.
  

Discovery: Obtaining Litigation Information

Between the initial filing of paperwork and the ultimate settlement or trial of a civil action, a very important period called Discovery occurs. This is a time when both victim and defendant exercise their rights to obtain information from their opposing party.

• For the victim, this often means that they must reveal personal information to the defendant regarding the effect the victimization has had on them.

• Most often, this includes information regarding treatment and therapy, including the records of mental health service providers.

• Perpetrators and defense counsel often abuse Discovery in an effort to intimidate and harass victims. Courts typically offer little protection to victims from these attempts to discourage legitimate litigation.

Although there are methods for maintaining some confidentiality, for the most part victims must reveal this information. In particular, mental health evaluations are used to prove the damages that victims seek to recover compensation for against the perpetrator. These damages must be proven through mental health reports and evaluations.

Several methods are employed by both sides of a lawsuit to obtain information from the other side during Discovery:

• Interrogatories are written questions that must be answered by the victim or the defendant within a certain period of time. These questions will range from very basic information regarding where the individual lives up to very complex questions regarding what the result of the injuries have been.

• Requests for production might require the provision of copies of medical reports, therapy notes, photographs, and other information. It is important to note that victims are often required to provide information about similar prior injuries that the defendant will attempt to use to either explain away or minimize the current injuries suffered by the victim.

• Depositions are often the most unsettling aspect to the discovery period for victims. This is an opportunity for the defendant's attorney to take the transcribed statement of the victim under oath. It is essentially equivalent to testimony at a trial with direct and cross examination by attorneys. However, it typically occurs in the lawyer's conference room and not in court. Of course, the victim has similar rights to obtain information from the defendant and often the deposition of the defendant, is an equally unsettling experience for the perpetrator.
  

Standing: Who Can Sue?

Standing is a legal concept that basically refers to the ability of an individual to address his or her complaints to the court. In order to have standing, one must generally be able to demonstrate that an injury has been suffered, are otherwise able to prove a sufficient personal interest in a cause of action or controversy, or be a necessary party in that his or her involvement is necessary to a fair and just determination of the outcome of the case. Those most central to a case are referred to as the parties to an action. In order to be a party to an action, one typically must have an interest that is so central to the case that they are necessary to the determination of all the relevant issues involved in a particular action.

In civil litigation there is often a particular order in which a priority is established among those individuals who have standing to bring an action. Typically such a priority of order, for example in a wrongful death suit, might be:

• Surviving spouse
• Children
• Parents of the deceased
• Siblings of the victim
• Other relatives
  

Unjust Enrichment: Who Can Recover?

It is important to make brief mention here of one particularly important legal doctrine called that of unjust enrichment. Unjust enrichment dictates that someone should not be allowed to benefit from their own wrongdoing. For example, someone who commits a murder should not be permitted to receive the proceeds of the insurance policy if he or she was named as the beneficiary of the decedent.

Many times unjust enrichment, which is a common law doctrine, is also provided through statutory schemes sometimes referred to as slayers statutes. Slayers statutes, similar to their common law counterpart slayers rules, would prevent someone from profiting from their crimes by making it impossible for them to inherit the proceeds of an estate of someone who they have killed. Courts have occasionally used extremely creative methods to assure that unjust enrichment does not occur.

Also, many states have rules that provide immunity between married individuals which prevents them from suing each other, for example, in cases of assault. However, courts are often viewing so-called "interspousal immunity," which is a doctrine created with the purpose of saving and supporting the institution of marriage, not being allowed to be used as a defense for domestic violence or similar crimes.

Burden of Proof

One very important aspect of litigation is the notion of how high a threshold one has to cross to prove a case. This provides a major distinction between criminal and civil litigation. In criminal courts, the beyond a reasonable doubt burden of proof is a very high burden, which is often described as having to prove your case to a "very high degree of moral certainty." If a member of the jury has any "reasonable doubt," which essentially means doubt that is formulated well enough that it can be expressed and supported by reason, they should vote for acquittal of the defendant.

However, the burden of proof is much lower in a civil trial. The civil justice system uses the mere preponderance the evidence burden, which is sometimes expressed as 51% level of proof. Civil jury instructions, those instructions given to jurors by the judge prior to their deliberations on a case, often describe this as the "scales of justice tipping ever so slightly in the direction of one party versus another," meaning that the jury must find for the party who is supported by the weight of the evidence, even if this is only slightly so. This difference in burden of proof many times results in a situation where a defendant is acquitted (found not guilty) on the criminal side, yet that a perpetrator has a judgment rendered against him or her in civil court.

Statute of Limitations

It is very important to keep in mind that although the victim may have a valid case to bring against a perpetrator, these must be brought within strict time limits set down by law. Although each state is very different in which time limitations are allowed, it is important to keep in mind that these strict limitations do exist in most instances. Once a statute of limitations has run, it is virtually impossible -- unless there are exceptions recognized under the law -- to bring the lawsuit that otherwise might have been brought within the statutory time limit.

• Most statutes of limitations are expressed in absolute years. For example, it is typical for personal injury actions to have two or three year statutes of limitations.

• Statutes of limitations typically begin to run from the point in time when the act occurs.

• Certain events can delay or extend a statute of limitations, called "tolling" the statute.

• The underlying purpose of statutes of limitations is to prevent "stale" cases from being brought to court and thereby denying a defendant, either criminal or civil, from being able to defend himself/herself due to the lack of exculpatory evidence or the fading memory of witnesses and similar reasons.

• However, defendants are not allowed to deliberately conceal their actions and thereby avoid prosecution of a case due to statute of limitations. That is why most statutes of limitations schemes allow for the tolling of the statute during periods where the defendant, for example, has perpetrated a fraud against the plaintiff or committed some other acts to conceal the crime.
  

Extending Time for Adult Survivors of Childhood Abuse

One particular area where there has been much recent action extending statutes of limitations is child sexual abuse. Many states now extend statutes for bringing civil actions against abusers until many years after the child has reached the age of majority. For example, Connecticut enjoys one of the lengthier statutes which was established at 17 years past the age of majority, or age 35 years. These actions are allowed regardless of the victim's reason for not bringing the action earlier.

Extensions and Delayed Discovery Approaches

Although these issues are very complex, simply stated, there are generally two types of cases where the bringing of the action has been delayed by the victim:

• One action is that the victim has lost or repressed his or her memory of the abusive events. At a later point, these memories may be recovered in therapy or spontaneously.

• The other major type of delayed action is one where the victim always had his or her memory of the events, but did not begin the action for any number of other reasons.

Reasons for not bringing an action during a period when the memory of the abuse is recalled might include: continued threats or intimidation perpetrated by the offender; the victim did not understand the connection between the abusive acts and the difficulties they may be experiencing in their current lives. Regardless of the reasons, these victims always had access to all or most of their memories of the events. Therefore, the absolute extension of time allows for an date certain within which victims may bring their cases regardless of reasoning for the delay. Victims do not need to prove any particular issue, such as a lost and recovered memory, to begin a suit. However, at that certain age you are forever barred from bringing your action in a state like this.

In the case of repressed and recovered memory, the second form of statute of limitation approach is found. This is when a particular period of time after the recovery of memory is allowed. For example, a few states allow for victims bringing statutes at a certain number of years, usually two or three, after they have recovered their memory. This action is allowed within this time period regardless of what point in life these memories are recovered. In a "delayed discovery" jurisdiction, there is typically no absolute age limitation as the tolling of the statute relates to the period of memory loss or repression. Therefore, someone who is 70 years old and recovers a memory of past abuse presumably would be allowed the two or three year period within which to bring a suit if all other requirements were met.

More recently, due to the increased attention paid to particular forms of victimization, lawsuits particularly tailored for special victim populations have emerged. For the purposes of this discussion, particular crimes against children and women will be briefly discussed. It is important to note that, as Carrington and Rapp point out, "victimization" itself is not a new tort, as such (See generally five articles cited in References).

• The civil cases being brought on behalf of victims and, in particular, women victims, are typically based on a number of well recognized civil legal causes of action.

• Crimes against children and, particularly, sexual abuse, are now regularly pursued within the civil justice system. This is particularly true with statutory extensions in the limitations on time that are allowed in these lawsuits.

Examples of how traditional tort concepts can be applied to special victim population cases are evident with child victims. When sexual abuse has occurred, a civil complaint may be prepared that alleges numerous personal injuries. These may include the underlying assaults and batteries, false imprisonments, wantonness or recklessness, and other torts. Also, as emotional and psychological damages are typically evident in child abuse cases, it is very common for emotional distress claims to be brought.

Crucial aspects of a child's emotional distress claim involve the presumption of the severity of the event that is typically recognized by the court, and the fact that most courts will not give much credence to typical defenses such as consent or assumption of the risk. Moreover, due to the young age of the child and the long life span anticipated for a young person, economic damages can be very high.

In addition, issues surrounding the loss of enjoyment of life -- such as the lack of the ability to trust, lack of the ability to form meaningful relationships, lack of the enjoyment of childhood and other similar somewhat more intangible claims -- can be added to more easily economically determined claims such as the loss of employability or the results of lack of academic success. As in crimes against women that are described below, it is not that the underlying legal action itself is different from other civil lawsuits, but that the new territories now being explored by civil courts in establishing damages, judgments and awards for child victims are stretching the traditional views of courts to new boundaries.

Crimes against women are also increasingly handled through the civil courts. As the public recognition of domestic violence, sexual assault, and sexual harassment become better understood and recognized, victims are finding courtrooms more favorable to a just outcome. Also, courts have become more familiar with the psychological impact of crime, and look to psychiatric diagnoses such as Post-traumatic Stress Disorder, and other recognized syndromes such as rape trauma syndrome or battered women syndrome, to articulate the injuries suffered by victims of these crimes.

As briefly stated above, in every instance where a victim brings a legal action claiming one of the injuries described here, the defendant will be able to respond and often provides a defense or an excuse for critical actions. Some common defenses include, as discussed above, that the statute of limitations has passed. This is what is referred to as a "complete defense." It is often possible to stop victims from pursuing their cases any further if the statute of limitations has run.

Another defense is that of provocation or that defendants claim that their actions should be excused because they were somehow provoked by the victim. Defendants may claim that they were involved in self-defense or the defense of others by saying their actions were justified in that they were only reacting to a threat against themselves or someone else. Victims may also be accused of having consented to the act or having enough knowledge that they assumed the risks that were apparent by consenting to the act. This basically means that the victim is being accused of knowingly exposing themselves to the harm that ultimately injured them. Although one cannot consent to everything, e.g., you cannot consent to be murdered, other consent -- if proven -- can help the defendant defeat the victim's case.

Finally, victims may be accused of contributing to their own injuries. This defense in some jurisdictions is used to completely defeat the victim's case (contributory negligence) and in other jurisdictions it may be used to reduce the amount of money that the victim may be able to recover (comparative negligence).

In addition to demonstrating the liability of one or more defendants, the victim must also prove his or her extent of harm or injury to support an award of damages. Various theories of damages are typically brought in victim litigation cases.

• The most basic of these are physical injuries that require medical intervention. It is often easy for medical bills to be produced and to have these included in a judgment for damages.

• In addition, when there is physical injury, often a physician can indicate a specific permanent partial disability, or narrow range of disability, such that a jury or court may estimate more accurately what effect this will have on the person's life, thereby allowing a particular damage award. Often issues such as the potential for future medical treatment and the costs of these treatments are figured into such damage awards.

• In other victim cases, however, some less tangible damage theories may be applied. Similar to the costs of past and future medical treatment, the costs of past and future mental health therapy may be estimated relatively easily. However, it is often extremely difficult to state with any specificity what the percentage of partial disability for emotional or psychological damage should be. A competent and experienced expert must be engaged to testify on these matters.
  

How does one determine issues such as the loss of childhood or adolescence? How are these issues quantified in any way that will make sense in the objective view of the court. The issue is how one can determine whether a loss of academic, professional, or personal potential has occurred. How can you prove that there was a potential there when it was never realized? These are all issues that place the victim service provider, and particularly the allied mental health professionals, in a critical role within the civil justice system. Often, courts look to mental health service providers for treatment recommendations and evaluations of disability to provide guidance in determining a value that can be placed on the victim's injuries for the purposes of awarding damages.

At the conclusion of a civil lawsuit, a verdict or decision is reached by the jury.

• If that decision is a "verdict of the defendant", then the victim has lost his or her case and is not allowed to recover for injuries against this defendant.

• If the result is a "verdict for the plaintiff ", then the victim has won the lawsuit.

• Juries are then requested to move to the next decision: The awarding of a particular sum to compensate the victim for his or her injuries. This is typically referred to as a "judgment."
  

Collection of Damages Awarded

It is important to note that in a typical victim case, reaching the conclusion of trial and having a judgment rendered for the victim/plaintiff is often only the beginning of the struggle in recovering damages. First, although this is beyond the discussion in this chapter, verdicts and judgments may be appealed. Briefly, a defendant who has lost can seek to have a judgment overturned, lowered, or set aside because the jury or the court failed to follow some legal procedure, or the result of the lawsuit is inconsistent with the prevailing law in a particular state. Therefore, the decision of this trial-level court may be brought up before an appellate court to render a decision as to the validity of the underlying decision, and even if the verdict itself is not attacked, the amount of the judgment may be appealed. Often, defendants seek to lower the amounts of money awarded by juries who they feel were overly zealous in awarding damages to the victim.

However, assuming the judgment withstands any appeals or other challenges, then a collection of that judgment must commence. In the case of insurance coverage, discussed below, insurance companies will usually ultimately pay judgments in accordance with their insurance policies.

Searching for Assets

If a defendant is sufficiently monied so as to be able to pay a judgment and chooses to do so, the collection of that judgment may be similarly swift. However, this is typically not the case in victim cases. Potential assets include, but are not limited to:

• Real property (e.g., a home).
• Other property (such as jewelry, motor vehicles, art work, or other valuable holdings).

• Other assets such as financial holdings, interests in real estate, corporations, or partnerships.

• Other income earned by or owed to the perpetrator.

Additionally, most states allow some method by which income earned or expected by the perpetrator can be garnished. Many times a victim will wait until the perpetrator has accumulated some assets to attempt to execute the judgment. Defendants may win lotteries, receive inheritances, or come into other windfalls which can open them to judgment execution. However, attorneys representing victims know that these are the exception -- and not the rule -- and typically the collections process can be a somewhat complex endeavor. This is particularly true with defendants who may attempt to fraudulently transfer their property or other interests to individuals who help them shield their assets from collection actions brought by victims. Nevertheless, a diligent collections process often results in obtaining money to fulfill some, most, or all of the judgment rendered by the court.

It is very useful for attorneys to look to the possibility of insurance coverage in victims' cases. In some instances, the perpetrator may be insured in some way that the result of the direct, first party action against the perpetrator may yield some coverage. It is important to note, however, that the likelihood of recovery in first party lawsuits is significantly tempered by underlying public policy regarding insurance. Essentially, insurance policies do not cover intentional wrongdoing. This is primarily based on long-standing public policy.

• It is fundamental to our society's well-being that wrongdoing not be encouraged by having the judgments of intentional wrongdoers paid by insurance.

If insurance companies were available to pay for the deliberate wrongful acts of perpetrators, then they might continue to perform critical acts unabated knowing that someone else will be there to pay for their actions.

Exclusions and Exceptions: Catching Coverage

Insurance policies, which can best be understood as contracts between the insurance company and the insured individual, contain exclusions of various sorts. One of the most basic is the exclusion of intentional, criminal, willful, or expected wrongful acts and damages discussed above.

Counterbalancing these exclusions are various exceptions that are found in insurance contracts or are being carved out by creative attorneys. The types of exceptions to the intentional acts exclusions that are being developed by courts include those where the perpetrator was unable to or otherwise did not form the intent to commit the act.

• For example, if someone of diminished mental capacity were to commit an act, and it was determined that he or she was unable to truly form the intent to commit these wrongs, then coverage might be allowed.
  

Negligence is Insurable

Third party suits brought against negligent defendants, who are not the actual perpetrators, allow for a much greater possibility for coverage by insurance policies. In the case of negligence, no intentional acts are committed by these third party defendants. As stated above, the hotel chain did not actually commit the assault; however, its knowledge of the high potential of assaults due to past criminal activities, and its failure to increase security to prevent these acts while assuring guests that protection was available to them, results in the determination of negligence.

Three types of insurance are most commonly involved in crime victim cases. These are:

• Automobile insurance.
• Commercial insurance.
• Homeowner's insurance policies.
  

Automobile Insurance

Automobile insurance policies that cover acts that "arise out of the use, operation, or maintenance of the motor vehicle." An obvious example would be a case where a drunk driver crashes into the victim, causing death or serious injury. These acts are considered within the scope of coverage of an automobile insurance policy.

Some difficult determinations involving automobile policies are implicated when the wrongful act is one that is not normally considered to be out of a typical use, operation, or maintenance of a car. For example, if a drive-by shooting were to occur, should the automobile insurance policy be implicated? Courts differ on their interpretation of this, most finding that the motor vehicle is not actually an instrument of the drive-by shooting, and that the automobile policy will not be implicated.

Premises and General Liability Policies

Commercial insurance policies, similar to homeowner's (or renter's) insurance polices, provide liability coverage for events that occur on particular premises. These insurance polices tend to be broad and cover a number of different types of injuries or accidents. Moreover, coverage may not be limited to events that occur only at these locations. For example, commercial policies may provide coverage for acts that are committed by employees not on the business premises. Similarly, acts that are committed by the homeowner under certain circumstances may be covered, even when the homeowner is not actually on his or her property.

A disturbing trend in victim's civil litigation cases involves legal retributions brought against the victim by the perpetrator.

• These may be brought in the form of separate lawsuits or counterclaims within the victim's own lawsuit.

Typical counterclaims against the victim include:

• Defamation, liable and slander.
• Invasion of the defendant's privacy.
• Conspiracy or fraud against the defendant.
• Extortion claims against the defendant.
• Claim that the victim's action has caused emotional distress to the defendant.

One additional avenue always available to defendants is to claim that the lawsuit was merely brought for vexatious purposes. A vexatious lawsuit is one that the defendant alleges was otherwise groundless and brought only to needlessly harm the defendant in an unwarranted or improper way. This is an area that deserves considerable attention from victims and their advocates. Also, a trend is developing in which those who provide mental health services and evaluations to victims are often the subject of lawsuits brought against them. This is most evident in later discovered repressed memory cases in adult survivors of child abuse litigation, where mental health professionals are sometimes sued for allegedly implanting memories in victims' minds.

Although victim litigation often provides excellent opportunities for victims to find remedies to their complaints against perpetrators, it is not often an easy road. Civil litigation is a complex and often difficult process:

• Victims can often be victimized once again in the civil process, despite the fact that they possess more control.

• Victim cases can often be very expensive to pursue.
  

Victims must be aware of the fact that they are ultimately responsible for the costs of litigation under most legal ethics rules and, if their cases are lost, they can be held responsible for these bills. As noted above, the discovery period is often the most difficult for victims. Victims must, once again, reveal very personal information about themselves and allow themselves to be probed and cross examined by the perpetrator's attorney. This can be a very disturbing proposition for victims who have, in many cases, recently or simultaneously endured the indignities of the criminal justice system. All this is not to say that victims should be overly cautious of litigation. However, victims and advocates must have a realistic view of the civil justice system provided to them prior to commencing such actions.

The civil justice system offers many potential benefits to victims of crime. Victims are in greater control of their lawsuits, as opposed to a criminal trial; this can help provide them with a greater sense of restoration of the control that they may have lost during the criminal victimization. Moreover, the victim often has that sense of empowerment that comes from hauling the perpetrator into court, with the victim having his or her "day in court".

Glossary

Aiding and Abetting. Similar to Civil Conspiracy, is when someone, not the actual perpetrator, so significantly contributes to the criminal operation as to be considered liable for their actions.

Abscond. To go in a secretive manner out of the jurisdiction of the courts, or to lie concealed, in order to avoid their process.

Answer. Formal written responses to the defendants / perpetrators file in response to plaintiff's complaints. These pleading may deny some or all of the allegations; they may raise defenses such as self defense or assumption of risk, or they may allege that even if all of the plaintiff's allegations are true, there is no liability. These pleadings are usually accompanied by legal memoranda and briefs. The names of the pleading vary from jurisdiction. "Demurrers", "motions for summary judgment", motions to dismiss" and "answers" are all descriptions of responsive pleading.

Assault. A cause of action for intentionally putting the victim in fear of a battery, coupled with the apparent ability to commit the battery.

Assumption of Risk. A legal doctrine that may relieve perpetrators of liability for injuries to victims if the victim voluntarily entered into a situation knowing that there was a risk of foreseeable injury (see also: Defenses; Rescue Doctrine).

Automobile Insurance. Insurance policies that cover injuries "arising out of the use, operation, or maintenance" of the vehicle.

Battery. The intentional, offensive, unpermitted touching of the victim by the perpetrator.

Burden of Proof. The threshold of evidence that one party must present in order to prevail in his or her case. In criminal cases, the burden of proof is very high: "beyond a reasonable doubt", or generally 99% of the evidence. In civil cases, however, the burden of proof on the victim / plaintiff is "a mere preponderance", or more than 50% of the evidence.

Causes of Action. The legal basis for a civil lawsuit.

Civil Actions. Lawsuits filed by victims to recover from injuries sustained and damages incurred as a result of the perpetrator's crime.

Civil Conspiracy. See Aiding and Abetting.

Collateral Estoppel. A legal doctrine which provides that, in some cases, the criminal conviction of perpetrators will be considered proof of those perpetrator's legal liability in civil actions brought by the perpetrator's victims.

Collectability. A general term meaning the extend to which defendants / perpetrators have the financial means to pay judgments from assets on hand, assets reasonably to be expected in the future, or financial assistance from such sources as insurance coverage.

Comparative Negligence. The more prevalent approach to reducing amounts paid to plaintiffs / victims allowing partially negligent plaintiffs / victims to recover damages from defendants / perpetrators, however, reducing the amounts of the award by the applicable percentage of the plaintiff's / victim's own negligence. (See also: Contributory Negligence).

Complaints. The formal written pleading filed in Civil Courts alleging that the defendant(s) injured the plaintiff(s), and that they should be liable for damages caused.

Compensation. Monetary reparations made to crime victims by a state or a governmental entity to recover "out­of­pocket" expenses incurred as a result of the crime.

Compensatory Damages. Damages paid to compensate victims for losses caused by the torts of the perpetrator. Such losses include: out­of­pocket expenses, loss of income, expenses such as medical bills, therapy, funeral costs, etc.; loss of present and future earning capacity; conscious pain and suffering; financial support; and, "consortium", the loss of the affection and society of lived ones.

Contributory Negligence. A legal doctrine, now modified in most jurisdictions, that any negligence on the part of the plaintiff / victim will bar civil lawsuits against defendant / perpetrators. (See also: Defenses; Comparative Negligence).

Criminal Action. Cases in which the state prosecutes perpetrators of criminal acts, committed in violation of the state's laws.

Damages. Amounts of money awarded to winning parties in civil suits expressed in a judgment.

Defendants. Parties against whom civil actions are brought.

Defenses. Legal doctrines that relieve defendant / perpetrator of liability for having committed a tort.

Delayed Discovery Rule. A legal doctrine that suspends the running of statutes of limitations during periods of time in which the victims did not discover, or by the exercise of reasonable diligence, could not have discovered, the injuries that would lead to their causes of action against the defendant / perpetrator.

Depositions. Pretrial proceedings in which attorneys for parties in a civil case have the opportunity to examine, under oath, the opposing parties and potential witnesses in the case. Depositions are sworn and reduced to writing. The transcripts may be admissible in evidence at trials if the witnesses are no longer available, or for the purposes of impeachment.

Emotional Distress. Emotional distress, or psychological injuries, can be caused by intentional, reckless, or negligent acts. Intentional infliction of emotional distress occurs when the perpetrator, by extreme and outrageous conduct, intentionally or recklessly causes someone emotional distress. Reckless infliction of emotional distress arises when the perpetrator causes emotional distress willfully and with a callous disregard of the consequences. Negligent infliction of emotional distress arises when the perpetrator acts negligently, causing emotional distress.

First Party Action. Lawsuits brought by victims directly against their perpetrators.

General Liability Insurance. Insurance policies covering whatever losses are enumerated in the policy.

Homeowner's Insurance. Broad based insurance policy which contracts to protect the insured from enumerated caused of accidental injuries to others. The accidents usually are not only confined to acts which happen on the insured's "home" premises, but also covers accidents that happen elsewhere. Renters of premises can obtain Renter's Insurance.

Insured. He or she who has contracted to receive insurance coverage from the Insurer whose actions are otherwise covered by an insurance policy.

Insurer. The business entity which has contracted to provide insurance coverage to the insured.

Judgments. The formal recitations of the outcomes of civil cases. They are almost always reduced to writing, and recorded as a part of the file.

Negligence. A legal doctrine providing that one may be liable to another if he or she: 1) owes a legal duty to the other; 2) materially breaches that duty; 3) the breach is the proximate cause of the other's injury; and 4) the other person suffers damages.

Negligent Entrustment. A tort in which one or more persons give, lend, or allow someone to use, or should have anticipated that that person would use a dangerous instrumentality to injure another.

Parental Liability. A legal doctrine that holds parents civilly liable for the torts and crimes of their children.

Perpetrators. Persons who have criminally injured victims.

Plaintiff. Party bringing civil actions. In the case of victim civil remedies, the victim is the plaintiff.

Professional Liability Insurance. Insurance coverage issued to "professional" persons: doctors, dentists, lawyers, architects, etc., to cover any losses caused by "malpractice" in the course of their professional services.

Provocation. A legal doctrine that may excuse defendant / perpetrator from the consequences of his / her crime / tort if the plaintiff / victim instigated a confrontation, or otherwise caused or provoked the defendant's actions. (See also: Defenses).

Proximate Cause. The "cause in fact" of injury to victims; a "cause" without which the victim's injuries would not have occurred.

Punitive Damages. Damages awarded to victims against perpetrators, over and above compensatory damages, in order to "punish" or "make an example of perpetrators".

Relevance. A rule of evidence. For purposes of this Manual, it simply means any evidence that might tend to prove the truth of the matter.

Renters Insurance. See Homeowner's Insurance.

Rescue Doctrine. A legal doctrine which allows one to recover for injuries suffered in coming to the rescue or assistance of others in peril. It is used as a counter to the defense of Assumption of Risk. (See also: Defenses; Assumption of Risk).

Restitution. Court action that requires perpetrators to make financial payments to their victims, usually as a condition of probation or leniency in sentencing.

Self Defense. The legal doctrine which relieved defendants / perpetrators of liability for torts if they acted in the reasonable belief that they had to use force to defend themselves, or others (loved ones, etc.), from death or great bodily harm.

Settlements. Agreements among the parties to lawsuits to end the suits without trial; usually the plaintiff agrees to drop the lawsuit for a fixed sum of monetary damages paid by the defendants.

Statute of Limitations. Periods of time, set by law after which civil actions cannot be brought. (See also: Defenses).

Third Party Actions. Lawsuits brought against persons whose negligence or gross negligence has facilitated the commission of a tort by a defendant.

Tolling of Statutes of Limitations. The running of statutes of limitations is suspended. (See also: Statutes of Limitations).

Torts. Civil or private wrongs (as opposed to criminal offenses) committed by perpetrators against victims.

Trier of Law. See Truer of Fact.

Truer of Fact. In civil cases, evidence is heard as to the facts, and the facts must be applied in the context of the applicable law. The entity that decides which facts are true is called the "Trier of Fact". This usually is the jury but, in non­jury cases, the truer of fact will be the judge sitting without a jury." Trier of Law, always the judge, who applies the relevant law to the facts as determined by the trier of fact.

Uninsured or Underinsured Motorists. State law usually makes it compulsory that drivers have enough insurance to cover damages if they, or others defined in the policies, injured by motorists who have no insurance, or not enough insurance, to cover injuries that they have caused.

Victims. Persons who have been injured by the criminal acts of perpetrators.

Wrongful Death. The civil action for the killing of one human by another, without justification or excuse.

Self Examination Chapter 8

Civil Lawsuits for Victims of Crime

1) Identify and describe three major differences between civil litigation and criminal prosecution from the victim's perspective.

2) Name and define three major causes of actions used by victims.

3) What are civil statutes of limitations? Discuss statute of limitations innovations applied to adult survivor of childhood abuse cases.

4) Discuss the pros and cons of victim litigation.

5) What are the two general approaches for victims to collect judgments?

References

Keeton, W. P., Dobbs, D. B., Keeton, R. E., & Owen, D. G. (1984). Prosser and Keeton on Torts (5th Ed.). St. Paul, MN: West.

See various Bureau of Justice Statistics Reports including:

The costs of crime to victims. (1994, February). NCJ #145865.

The economic cost of crime to victims. (1984, April). NCJ #093450

Injuries from crime. (1989, May) NCJ #116811

Victim costs and consequences: A new look. (1996, January). NCJ #155281

See generally:

Carrington, F., & Rapp, J. (1989) Victims' rights: Law and litigation (as supplemented). New York: Matthew Bender.

Carrington, F. (1978, June). Victims' rights - A new tort?, 14 Trial 39.

Carrington, F. (1983, December). Victim rights - A new tort? Five years later,

19 Trial 1.

Carrington, F. (1988, January). Crime victims' rights, 24 Trial 1.

Carrington, F. (1992). Legal remedies for crime victims against perpetrators: Basic principles (supplemented). Arlington, VA: National Victim Center.

Class Exercise Chapter 8

Civil Remedies

Comparing Justice Systems: Key Elements of a Civil Case

The following questions address the differences between criminal and civil cases, as well as critical aspects of a civil case. This exercise is designed to help you draw from the information provided in the preceding lectures on The Dynamics of the Criminal Justice System and An Overview of the Civil Justice System. After reading the case scenario, please complete the following table. A class discussion will follow. This exercise is designed to last 15 to 20 minutes.

Back to NVAA

The information on this page is archived and provided for reference purposes only.