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  • Crime Victimization As A Tort

  • Crime Victimization As A Tort


    When a victim initiates a lawsuit, it is typically brought as a "tort" action. As Professor W. L. Prosser tells in his learned treatise 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 that is twisted, or crooked, not straight . . . broadly speaking, a tort is a civil wrong (Keeton et al. 1984).

    Essentially, the legal definition of a tort is a private or civil wrong or injury that typically involves the violation of a duty one individual owes to another, often based on the relationship they have to each other. Torts can be divided into two distinct categories. The first is an intentional tort where someone intentionally injures another person. The second is a negligent tort in which one person fails to perform some duty to care for another person and this negligence 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 liability. The plaintiff/victim must first prove that the defendant is liable, that is, 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 damages. Damages are a measurement of what harm has occurred, that is, 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 (first party) or are bringing their action against another party (third party) for contributing indirectly to the harm suffered by the plaintiff. A plaintiff seeks to hold a third party defendant accountable for their negligent, albeit indirect, contribution to the victimization.

    In first party litigation, the victim is suing the defendant who is the actual perpetrator. Third party litigation, on the other hand, includes cases where the victim sues a landlord or hotel for failing to provide adequate security which created conditions that allowed a rape to occur. Another example is a lawsuit 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, corrections 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 such as seeking out a defendant with greater financial means than the first party defendant are discouraged by the law and the courts.

    Collectability: making judgments real. One significant aspect of first party versus third party litigation is the issue of collectability. Collectability is a general term that 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 perpetrators of the crime, victims are often limited to collecting their judgment directly from the assets of the offenders. This is because insurance policies that might be available to pay certain kinds of judgments often exclude intentionally committed wrongful acts from coverage.

    Most often, the likelihood of recovering damages on behalf of a victims in first party cases is directly related, in large part, to the wealth of the perpetrator. Third party litigation, on the other hand, typically involves cases that are brought against entities or institutions that may have more than adequate resources to pay for victim damages and whose actions (or nonactions), due to the nonintentional nature of their negligence, may be covered by insurance. Thus, additional avenues for payment of judgments to victims may be available from insurance companies covering negligent actions.

    This information came from a
    US DOJ online article.

    *** Any law, statute, regulation or other precedent is subject to change at any time ***

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