Representing Victims of Violent Crime in Civil Actions

The McGrath Firm aggressively pursues civil actions arising out of all forms of criminal activity. These include suits against businesses and property owners for, among other things, failure to provide adequate security. The crimes for which we will seek civil remedies include:

Murder/homicide
When a person intentionally or negligently causes the death of another person the crime will support a claim for wrongful death. A claim may be asserted against the perpetrator of the crime as well as others who might share legal responsibility for the conduct resulting in death.

When a victim is killed while on the property of another person or entity, the victim’s representative may be able to institute a wrongful death cause of action against the owner, possessor or operator of the property (for example a business operating on the property) for failing to provide adequate security or otherwise implement measures that would have prevented the crime.

Assault
Under North Carolina law, injured individuals can recover civil damages that result from a criminal assault. To prove a claim for civil assault the victim must establish that a perpetrator attempted to commit a battery or create a show of force indicating that a battery is imminent. Mere words or verbal threats are not enough to make out a case for civil assault. Rather, a victim must show that the defendant acted in a way that created a reasonable belief of immediate harm, that the defendant intentionally brought about this belief, and that the victim was actually placed in fear of immediate harm.

Assaults can arise in a wide variety of situations. These would include, for example, the threatening actions of a bouncer at a nightclub. In addition to the perpetrator, other persons and entities may be liable for the assault including the perpetrator’s employer and the owner of the business or property where the assault took place.

Battery
Under North Carolina law, civil battery is defined as any harmful or offensive physical contact with the victim. There must be actual physical contact between the perpetrator and the victim. Mere words or threats are insufficient to prove a claim of battery. To recover for civil battery a victim must prove that the perpetrator committed an intentional act that caused harmful or offensive physical contact to the victim, and that the victim suffered physical or emotional injuries as a result of the intentional act of the perpetrator.

Like assaults, cases involving battery can arise from an almost infinite variety of circumstances. These would include for example, sexual assaults, physical altercations, child and sexual abuse, elder abuse and cases involving an illegal use of force by a police officer. In addition to the perpetrator, others may be legally responsible for battery including the perpetrator’s employer (such as schools, churches, nightclubs, towns, cities and other political entities), and the owner of the business or property where the battery occurred.

Sexual assault and rape
All rapes and sexual assaults are serious crimes. In addition to suits against the perpetrator, victims of rape or sexual assault can pursue civil actions against other persons and entities, including property owners who fail to provide adequate security measures on the property. In some cases the employer of the perpetrator may be liable for negligently hiring of the perpetrator.

When a sexual assault occurs in connection with a victim’s enrollment at an educational institution, additional theories of liability may be pursued, including claims arising under Title IX, a civil rights law established by federal statute. Under Title IX, schools must ensure that all students have equal access to education, regardless of gender. Sexual assault and rape are among the forms of discrimination prohibited by Title IX, even when the crime occurs outside of campus or involves individuals who are not students at the institution.

Among other things, Title IX requires that when a student becomes the victim of sexual misconduct, schools are required to take actions to prevent such crimes from occurring in the future and address their effects. For example, schools are required to implement and enforce policies designed to prevent acts of retaliation by other students or school representatives against the victims of sexual assault, implement measures designed to prevent and respond to acts of sexual assault, and have an established and effective procedure for investigating and resolving cases of sexual assault. Educational institutions are subject to civil liability when they fail to comply with these requirements.

Child sexual abuse
Child sexual abuse is a serious crime. Those impacted by child abuse should be aware that civil remedies may be available to them for acts of abuse.

Victims can pursue civil claims for battery, intentional infliction of emotional distress and other legal theories against the perpetrator of the abuse. In appropriate cases, civil actions may be available against other persons and entities including the employer of the perpetrator. For example, if the abuse occurs at a day care center or preschool, claims may be asserted against the owner of the preschool that employed the perpetrator. If the abuse occurs while a victim is engaged in the activities of a club (such as the Boy Scouts), church or other organization, claims might be available against that entity.

Drunk driving accidents
Drunk drivers, especially those who cause deaths or injuries in motor vehicle accidents, face harsh criminal penalties, including jail time. Apart from the criminal proceedings against a drunk driver, civil actions can be pursued against drunk drivers who cause injuries or fatalities.

When drunk drivers injure or kill innocent victims, actions might also be pursued against businesses and individuals who sold or served alcohol to the drunk driver. Under North Carolina law it is illegal to sell alcohol to people under the age of 21 or to persons who are intoxicated at the time of sale. Individuals who are injured as a result of the violation of these statutes (for example, people who are injured by a drunk driver who was sold alcohol in violation of these statutes) can pursue civil actions against the persons and entities that sold alcohol to the drunk driver.

Elder abuse
Elder abuse is any form of mistreatment that results in injury, harm or loss to an older person. Although estimates vary, it is generally believed that four to six percent of the elderly are abused.

Elder abuse in a nursing home or other patient care setting is a crime in North Carolina. North Carolina statutes provide that it is unlawful for any person to physically abuse a patient at a nursing home or other care facility. Persons or facilities violating this statute are guilty of serious felonies.

The commission of elder abuse in a nursing home or other healthcare setting will also support a civil action against the nursing home employees responsible for the abuse and the nursing home or healthcare facility itself. These claims might include, for example, claims alleging negligence, medical and nursing malpractice, assault, battery or wrongful death. Common scenarios include physical abuse, sexual abuse, emotional abuse, financial wrongdoing, dehydration, malnutrition, bedsores and gross medication errors. In appropriate situations victims or their families may be able to assert claims for the negligent hiring, negligent supervision or negligent retention of an abusive employee, negligent supervision and treatment of violent residents, negligent infliction of emotional distress, and intentional infliction of emotional distress.

Inadequate or negligent security cases.

One possible claim available to crime victims is what is called an inadequate or negligent security claim. Under North Carolina law, businesses and property owners can be held liable when they fail to take reasonable measures to protect persons from the foreseeable criminal acts of third parties. These cases typically arise from assaults, rapes, homicides, robberies, shootings or other violent crimes. Potential defendants include the owners of shopping malls, hotels, apartment complexes and other commercial properties.

Under North Carolina law, business and property owners are required to exercise reasonable care for the protection of such persons when the occurrence of crime on their property is foreseeable. What constitutes foreseeability? The courts have held that foreseeability may be shown by all relevant evidence, including evidence of prior criminal activity on the premises involved, or in the general area in which the property is located.

Typically, plaintiffs will attempt to demonstrate foreseeability by identifying crimes that occurred at or near the subject premises in the years preceding the incident at issue. The nature of the prior crimes is relevant to the issue of foreseeability. While courts have sometimes allowed juries to consider non-violent crimes, others have rejected their relevance.

Once foreseeability has been established, the owner will be held to a duty of reasonable care. Liability for injuries may arise from failure of the business or property owner to exercise reasonable care to discover that crimes are occurring on his property or are likely to occur, coupled with failure either to provide reasonable security measures or to warn customers or other persons lawfully on the property that such crimes have occurred in the past.

In addition to proving negligence, plaintiffs must also prove that the owner’s negligence was a cause of the claimant’s injuries. Put another way, plaintiffs bear the burden of showing that the provision of additional security measures would have prevented or deterred the crime at issue.

When handling an inadequate-security case, it is critical to obtain in discovery all leases, property management contracts, operating agreements, agreements regarding the use, occupation and use of the property, and a full description of all property interests held in the property, including common areas. Generally speaking, only parties in possession and control of the premises will be held responsible for crimes occurring on the property. For example, commercial landlords who have relinquished possession and control of property to tenants will generally not be liable unless they have retained control over the area of property where the criminal incident occurred. Property owners who relinquish control and possession of property pursuant to a lease or other agreement and retain control over specific portions of the property, such as parking lots, lawns and common areas, may be found liable for crimes occurring in these areas.

It is critical to identify tort duties that arise by contract, especially duty-creating or duty-shifting contracts, such as management agreements, franchise agreements, licenses, operating agreements and agreements relating to the inspection, maintenance and repair of conditions on the property at issue.

Burden of proof in civil actions
The burden of proof in civil and criminal actions are very different. In a criminal case the prosecutor is required to prove criminal liability beyond a reasonable doubt. This is a very high standard that prosecutors sometimes fail to meet.

In civil cases the plaintiff is merely required to prove his or her case by a preponderance of the evidence. Put another way, the plaintiff in a civil suit is only required to demonstrate that the defendants are more likely than not responsible for the plaintiff’s injuries and damages. Accordingly, and this is critical, a defendant may be found not guilty in a criminal case and still be found liable in a civil action for damages. Clients should not assume that the acquittal of the defendant in a criminal case forecloses the possibility of pursuing the defendant or other responsible parties for civil remedies arising out of the crime at issue.

Representing Crime Victims in Connection with Criminal Proceedings
The prosecutor in a criminal case does not represent the victim of the crime at issue. He represents the citizens of the jurisdiction prosecuting the case. As a result, crime victims should consider retaining an attorney to represent their interests in the criminal proceedings against the perpetrator.

Crime victims are given broad rights with respect to criminal proceedings. The McGrath Firm can help to ensure that these rights are enforced and observed during the criminal case.

Under North Carolina law crime victims possess the right to be given information about the crime, the right to receive information regarding how the criminal justice system works, the rights of victims, the availability of services to victims, the right to be informed of and be present at court proceedings of the accused, the right to speak with the prosecutor and provide a Victim Impact Statement, the right to be heard at the sentencing of the accused, the right to receive restitution, the right to receive information about the conviction or final disposition and sentencing of the accused, and the right to present views and concerns to the governor or state agency considering release of the perpetrator after a period of incarceration.

Once he has been hired as the crime victim’s personal attorney, Mark McGrath, will ensure that these rights are being observed by the district attorney and the court. He will communicate with the prosecutor to keep abreast of all developments in the case and act as a liaison between the crime victim and the prosecutor regarding important aspects of the case. He will act to ensure that the victim’s rights are being protected and enforced by the judge and prosecutor during the entirety of the criminal proceedings.

As one example of this role as advocate for the crime victim, consider the following: as part of the prosecution of a given crime the victim will be allowed to present testimony to the judge and jury regarding the impact the crime has had on her. This is typically accomplished through a Victim Impact Statement, a written document read in open court to underscore the damage suffered by the victim as a result of the crime. When The McGrath Firm is retained to represent a crime victim in connection with the prosecution of a criminal case we can provide valuable assistance in the framing and drafting of the Victim Impact Statement.

We can assist with other aspects of the criminal case as well. For example, if the perpetrator is convicted, crime victims are entitled to receive restitution from the defendant. Restitution is a financial obligation imposed against the defendant to compensate the victim for certain specified losses and injuries. While not nearly expansive as the damages available in civil actions, we have found that an award of restitution by the perpetrator is helpful in healing the emotional injuries suffered by victims of crime. The McGrath Firm can assist with your claim for restitution by assembling paperwork documenting your financial damages and helping to make sure that the claim for restitution is as strong and well-substantiated as it can be.

Mark McGrath is also available to assist you in applying for compensation through the North Carolina office of Victims Compensation Services. Through this program, victims who incur medical expenses and lost wages as a result of being the victim of a crime can receive compensation for specified losses. Victims of rape, assault, child sexual abuse, domestic violence and drunk driving, as well as the families of homicide victims, are eligible to apply for financial assistance under this program. Under the program victims can recover specified losses including charges and expense incurred for medical care related to the crime. The compensation available through the fund is limited, and does not include, for example, compensation for future medical expenses, lost earning capacity, disability, property damage or pain and suffering. These categories of recovery would be compensable in a civil action.

If you or a loved one are the victim of a crime we would like to hear from you. Mark McGrath spends a large percentage of his professional time representing crime victims in civil actions against defendants whose action or inaction has caused or contributed to the crime that caused the victim to suffer physical or emotional injuries. Mark has spoken at seminars regarding civil claims that are available to crime victims and has written and published numerous articles about issues arising during inadequate security and other crime-related actions. Mark has 17 years of representing crime victims against responsible third parties in civil suits. Before his representation of crime victims, he represented large businesses and insurance companies against such claims. He knows how these types of businesses work, what their strategy is toward handling criminal victim cases, and perhaps most importantly, knows how to persuade and negotiate with them to obtain maximum compensation for your injury. Mark is also compassionate, feeling deeply the pain and hardship that accompany being a crime victim.

At The McGrath Firm we are kind and compassionate, but we will fight tirelessly and aggressively to obtain justice for our crime victim clients. If you or a loved one has been the victim of a violent crime, please contact us for a free consultation and case evaluation.

Mark is an active member of several national crime victim advocacy groups including the National Center for Victims of Crime, the National Crime Victim Bar Association, the National Organization for Victim Assistance, the North Carolina Coalition Against Sexual Assault, the North Carolina Victims Assistance Network, and is a member of the National Alliance of Victims’ Rights Attorneys and Advocates.