Criminal Acts and Injury Lawsuits

By Aaron Larson

March, 2005

Contents

• Criminal Acts as Torts
• Problems of Collectability
• Lack of Insurance Coverage
• Notable Exceptions
• Additional Remedies

Criminal Acts as Torts

When a person commits a crime against another person, the criminal act will often support a valid tort claim (a civil lawsuit for an injury claim) by the victim against the criminal. Yet lawsuits are rarely filed against criminal offenders. The primary reasons have to do with the ability to collect a judgment against a criminal defendant, and with the unavailability of insurance coverage.

Problems of Collectability

Criminal defendants are often in a poor position to pay a judgment for damages, resulting from the injuries they cause. They frequently do not have much in the way of resources even before they get into trouble with the law, and by the time their criminal trial is over they have often been out of work (and perhaps in jail) for a considerable period of time, with whatever savings or resources they may have once had depleted by attorney fees, court costs, and fines assessed against them upon conviction. For more serious crimes, the defendant may well face a term of incarceration, perhaps for years, during which the defendant won't be earning any meaningful income.

As a consequence, most criminal defendants are regarded as "uncollectable", meaning that even if you secured a judgment against them you would be able to collect little or nothing from the defendant's assets. Few people are willing to go through the time and expense of prosecuting a lawsuit, unless there will actually be money to recover at its conclusion.

Lack of Insurance Coverage

Most insurance policies specifically exclude intentional or criminal acts from coverage. Accordingly, even where a criminal had very good insurance coverage at the time of the crime, that coverage is not ordinarily available to compensate the victim.

Notable Exceptions

There are a handful of offenses where litigation against the defendant, or against others who share responsibility for the victim's injury, remains viable. Such cases include:

Drunk Driving Accidents - If a drunk driver carries auto insurance, that insurance will ordinarily cover drunk driving car accidents, even though the defendant knowingly drove while intoxicated. There is a strong public policy basis for requiring drivers to carry at least some liability insurance, and insurance companies generally cannot escape their obligation to cover car accident claims resulting from the negligence of their insureds, even when drunk driving plays a role in the accident.

Institutional Child Abuse - Where a child is abused or sexually molested in an institutional setting, including a church setting or daycare, there may be a viable injury case against the institution. For example, the institution may not have adequately screened its workers when it hired them, or it may not have provided adequate supervision of the settings in which the children were assaulted. Sometimes the institution will be found to have been aware of past incidents of abuse, but to have covered them up instead of taking appropriate remedial action.

Crimes on Business Premises - Although the laws vary significantly between states, in some jurisdictions it is possible to bring a cause of action against a business owner, where it was reasonably foreseeable to the business owner that a crime of the sort suffered by the victim was likely to occur on the business premises, but the business owner failed to take appropriate steps to prevent such crimes from occurring.

Crimes in Rental Premises - Although again the laws vary significantly between states, in some jurisdictions it is possible for a tenant to bring a lawsuit against a landlord for failing to provide adequate security in the rental premises. This is most common in an apartment setting where there is inadequate security in a common area of the building (an area which may be accessed by all tenants), or where the security devices are faulty or inadequate such that criminal activity is occurring within the rental premises or the premises are no longer reasonably safe.

Additional Remedies

Although it may be impractical for a crime victim to bring a personal injury lawsuit, other remedies may be available. For example, the victim may be able to recover restitution from the defendant as part of the defendant's sentence, particularly in relation to the victim's economic losses. Also, some states offer "victim's rights funds", where the victim may recover certain compensation or may obtain funds for counseling services. Many prosecutor's offices have a "victim's rights office", where a crime victim can inquire about available compensation.