Yes, but it depends upon the specific facts of what happened and when it happened.
In order to answer the question of whether you can sue a business for Inadequate Security, we must first understand some basic concepts of Indiana law.
These concepts that must be explained include:
- What is a Negligence Lawsuit?.
- How is Criminal Prosecution Different Than a Civil Cause of Action for Negligence?
- Who Are the Parties in a Criminal Case versus a Civil Case for Inadequate Security?.
- The Burden of Proof in a Civil Lawsuit for Inadequate Security
- If the Injured Person is Successful in Proving Inadequate Security of the Business or Landowner, what is the remedy?
- If an Inadequate Security case is proven to have occurred in a civil lawsuit, who pays and how much is it worth?
What is a Civil Lawsuit based Upon Negligence or Fault?
A civil lawsuit can include a “negligence” claim filed against a person or a group or business that failed to act reasonably or acted unreasonably under the specific set of circumstances that led directly to an injury or loss to a person.
In a civil case, the Plaintiff (injured party) would allege the Defendant – a person and/or business -- caused injuries and death to the person who was murdered or assaulted. These injuries can be physical and/or mental in nature.
Criminal Prosecution versus a Civil “Cause of Action”
In a criminal case, the government (often the State where the occurrence took place), brings a criminal case against the perpetrator. All criminal law cases are based upon a violation of a written statute in a criminal codebook. In other words, all criminal cases must violate a WRITTEN law in a book somewhere.
On the other hand, a civil lawsuit does not necessarily have a written codebook or statute for civil wrongs such as Inadequate Security. These violations are often found in “common law” cases. This means that other trial cases in the past – just like yours – were decided by a Judge and a book of the outcomes of these appeals of those cases have developed “causes of action” or violations that have taken on the effect of laws just the SAME as if written in a statute book.
The elements of truth (the foundational building blocks of a case) differ in a criminal case and civil case, too.
Both types of cases involving the same conduct can occur simultaneously or one after the other. There is NO requirement that a person must be convicted criminally before an injured person can sue in civil court for damages caused by the harmful conduct. In other words, a person can be found “not guilty” of murder, but still, the landowner might be held responsible in a civil court or law for “inadequate security.”
Similarly, there is no requirement that the Defendant is convicted or found “guilty” in a criminal court before an injured person can seek damages for losses due to his conduct. A prime example of this concept was the infamous OJ Simpson murder case. He was not convicted by a criminal court but found to be responsible for causing injuries to his former wife and the delivery person. His estate was liquidated to pay the civil judgment verdict in their favor.
Participants in a Criminal Case versus a Civil Lawsuit
In a criminal case, there are usually two parties – the government (often the County Prosecutor’s Office of the state where the event occurred) and the alleged criminal defendant. Of course, there might be more than one criminal defendant in the case if the harmful conduct was perpetrated by two or more individuals.
While both the criminal and civil case use the word “Defendant,” there are major differences between being a Defendant in a criminal case versus a civil case.
Burden of Proof
Defining “Burden of Proof “ is sometimes a difficult thing to do. We have the burden of proving the landowner provided “inadequate security.”
In short, it is our legal duty to persuade the Judge or jury that enough evidence has been presented to persuade the trier of fact (the one who decides which facts are true – most often a jury, but sometimes a Judge if the parties agree in advance) that they are correct.
There are two major different standards in American cases – criminal cases and civil actions. In a criminal case, the government must prove its case “beyond a reasonable doubt” to the jury. This means some doubt can exist in the juror’s minds, but that doubt must be reasonable when evaluating it to find a person “not guilty.”
In a civil action, however, the standard of proof is called a “preponderance of the evidence.” This is a fancy legal term that means one side is more likely correct than the other, even if by the slightest of weight. I like to refer to it as which side is “probably” right. There can be lots of doubt in a juror’s mind but he or she can still find for the party who was “probably” right.
Consequently, in an Inadequate Security case, the plaintiffs (the injured persons) must prove the act “probably” did occur and it “probably” did cause damages (losses of an economic or non-economic nature like mental anguish, medical bills, impairment, disfigurement or death).
In a criminal case, the State (government) must prove a violation of each and every element of the statute found in a criminal codebook. This often includes proof of when the event occurred, where it occurred, what occurred, and the state of mind of the Defendant at the time of the event (intentional or reckless or negligent intentions).
In a civil case, the state of mind of the Defendant landowner is not necessary to prove. But, the additional element of “proximate cause” is included. Proximate cause is colloquially defined as proof that the event directly caused the damages complained of by the Plaintiff (the party bringing the action). In other words, the losses suffered by Plaintiff must be proven to have been caused by the Inadequate Security and not some other unrelated event.
Negligence for Inadequate Security
All negligence cases have the same basic elements:
- A duty must exist from the Defendant to the Plaintiff;
- This duty must have been “breached” or broken;
- The breach must be a cause of
- Plaintiff’s injuries, damages, and losses.
The most difficult burden to overcome in an inadequate security case is a duty. The Indiana Supreme Court has ruled that unforeseen criminal acts by a third-person are not foreseeable, unless certain circumstances exist.
“Foreseeability” is analyzed by looking at the relationships between Defendant and Plaintiff.
The Indiana Supreme Court has ruled that a tavern has no duty to protect patrons from the unforeseen criminal acts of persons within the tavern to other patrons.
We must prove the business/landowner had knowledge or should have had knowledge that danger existed for visitors on the property BEFORE it happened. The longer the potential for danger existed, the more likely they should have known.
The Remedy for Inadequate Security in a Civil Lawsuit
This answer is relatively simple. In a criminal case, if the State (government) proves its case “beyond a reasonable doubt,” then the criminal Defendant could face jail time, fines, probation, and other sanctions against the offender if a conviction is obtained as a punishment.
In a civil case, punishment is not the goal, but rather compensating the injured person to make them “whole” again. Consequently, the only remedy in a civil case is an award of monetary damages to be paid by the Defendant to the injured person.
Who Pays and How Much is an Inadequate Security Case Worth?
The amount and type of compensation that is available in a civil lawsuit involving Inadequate Security or assault depend upon the specific facts of the matter and the severity of the injuries.
Damages (losses and harms) in an Inadequate Security or Inadequate Security case depends upon the severity of the physical and emotional harm the victim suffered. This includes past pain and suffering or future pain as a result of the abuse. Many victims continue in the future to suffer from anxiety, depression, and Post-Traumatic Stress Disorder that can require future or lifelong treatments and therapies.
Another problem in cases like this includes making sure the Defendant has adequate resources to pay a judgment in favor of the injured person. Sometimes, these judgments can exceed several hundred thousand dollars or more. Unless the Defendant has substantial personal assets or money, it might be very difficult to collect. Some Defendants might even try to declare personal bankruptcy and avoid paying for the damages he caused.
Most businesses have insurance to cover acts of danger on their property. The damages for a Wrongful Death are found in the Indiana statute book. We will talk about the recovery, but it can include burial costs, other losses, and the loss of companionship for any dependents.
If no dependents (like children) are involved, then the Adult Wrongful Death Statute limits recovery to $300,000 plus attorneys’ fees.
If there are dependents, then there is no limit to the amount a Wrongful Death plaintiff can recover.
When Must the Civil Lawsuit be Filed or When Is it Too Late?
This is a very difficult hurdle that an injured person must clear before gaining a civil judgment against a perpetrator of Inadequate Security.
For adults, a person must bring a lawsuit in Indiana within two years of the injury, or else the case is forever barred and waived.
That is why it is important to hire the right lawyers with experience in these matters like McKibben Shaw Law.
McKibben Shaw Law (260) 777-7777. Call or text that number now before it is too late and ask for JJ Shaw, Attorney at Law.
We Get You Back on Your Feet.