SURVIVOR LEGAL NEWS #5
Civil Justice System
This blog is dedicated to the brave survivors of intimate partner violence, sexual abuse, childhood trauma and human trafficking. We will be covering legal news concerning victim’s rights and remedies.
Civil Justice System
As outlined in Survivor Legal News #4, a survivor controls his/her case in civil court. It is the survivor who decides whether to sue, accept a settlement offer or go to trial. When a survivor wins a civil case, no one will be sent to prison. Rather, a civil jury will determine whether an offender/perpetrator, or a third party, is liable for the injuries a survivor sustained due to the crimes, actions, and inactions of the named defendants. In the civil justice system, liability must be proven by a "preponderance of evidence" as opposed to "beyond a reasonable doubt." The preponderance of the evidence means that the Plaintiff/Survivor must prove that there is a greater than 50% likelihood that the defendant(s) committed all the elements of the particular wrongs alleged. As an example, many people are familiar with the O.J. Simpson murder trial. He was found “not guilty” of the murders of his former wife Nicole Brown and her friend Ron Goldman by a criminal jury. However, the families of Nicole Brown and Ron Goldman filed civil cases against Mr. Simpson, and in 1997 the families were awarded $33.5 million by a civil jury.
First Party Defendants - Examples of Claims that may be brought through Civil Lawsuits
Claims brought against the offender/perpetrator directly often include "counts" of sexual assault, assault, battery, false imprisonment, intentional or reckless infliction of emotional distress, fraud, conversion, and wrongful death.
These direct claims against the offender/perpetrator are generally framed as an Intentional Tort.
The elements of an Intentional Tort require an intentional act (most crimes fall into this category). In other words, there will be a deliberate act that requires proof of causation that leads to specific damage. When discussing sexual assault, assault, battery, false imprisonment, fraud, conversion, and wrongful death, proof should be clear as these acts cause harm to the survivor. However, we have all seen or heard offensive defenses that seek to undermine harm experienced by the survivor—"he/she liked it,"(consent) "he/she looks fine now,"(damages) and more.
Third Party Defendants – Examples of Claims that may be brought through Civil Lawsuits.
In some civil cases, a "third party" may be held responsible for the injuries a plaintiff/survivor endured and suffers. For example, shopping malls or other businesses that fail to take safety precautions for their customers, particularly after being warned of crime in/or surrounding their premises. Other potential third parties include schools, childcare centers, other institutions that do not properly conduct background checks of their employees or just transfer their employees to another location when a claim or suspicion of child abuse has occurred.
Claims against third parties are framed as negligent torts. Negligence is defined as a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions but can also consist of omissions when there is some affirmative duty to act (e.g., a duty to help victims of one's previous conduct).
Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. See Restatement (Third) of Torts: Liability for Physical Harm § 3 (P.F.D. No. 1, 2005). Negligent conduct may consist of either an act, or an omission to act when there is a duty to do so. See Restatement (Second) of Torts § 282 (1965).
Four elements are required to establish a prima facie case of negligence:
- the existence of a legal duty that the defendant owed to the plaintiff
- defendant's breach of that duty
- plaintiff's sufferance of an injury
- proof that defendant's breach caused the injury (typically defined through proximate cause)
For instance, a hotel has a duty to its guests to provide reasonable safety measures, including practicing safe food preparation and handling, keeping the floors clear of obstructions, and ensuring safety in a guest room and/or accompanying garage. As an example, in a case involving a guest who was sexually assaulted in the stairwell by an unknown perpetrator, the plaintiff needs to demonstrate a failure on the part of the hotel take precautions to prevent such a crime—i.e., properly locking outside access or other breaches of their duty as defined by hotel industry standards. As a result of the hotel's breach of these duties, the plaintiff was sexually assaulted and that (of course) caused injury to the plaintiff.
Future blogs will delve into the defenses of these claims, such as consent and damages.
See you soon, Stay Safe
I am an active member of the National Crime Victim Bar Association. My professional experience began as a Registered Nurse in the Intensive Care Unit at Yale New Haven Hospital. While pursuing my Bachelor’s Degree, I was a counselor with the New Haven Rape Crisis Program, which was located in the Yale New Haven Hospital Emergency Department. I had the privilege of counseling sexual assault survivors and performed seminars for local police departments, universities, and high schools. My work with the Rape Crisis program led me to attend law school. During the course of my career, I have acted as Pro Bono Counsel for Rape Crisis Programs and have practiced law in several different State and Federal Courts. I am a member of the Palm Beach County Sober Home Task Force and Pro Bono Counsel for the Florida Association of Recovery Residences.
I am also a survivor.