Collecting Damages from Third Parties
Even when the perpetrators of a crime are known to be judgment-proof, victims still have a chance to recover their losses. Instead of suing those who inflicted their injuries directly and intentionally, plaintiffs can go after third parties: individuals or entities such as businesses, institutions, or govern- ment agencies. The twist in these civil suits is to allege that a third party is partly to blame for the victim’s misfortunes.
The legal theory behind third-party suits paral- lels traditional notions of negligence. The plaintiff argues that the defendant (the third party) had a duty or obligation, that there was a breach of this duty, and that this breach proximately caused injury to the plaintiff. The plaintiff tries to prove that the third party’s gross negligence put the criminal in a position to single him or her out for harm (Carrington, 1977). For example, in the aftermath of a spate of massacres on school grounds, families of youngsters who were killed or wounded filed lawsuits against the parents of the students who went berserk, the people who inadvertently were
the sources of the weapons, the school district, and the manufacturers of the guns (Lewin, 2001).
There are two types of third-party liability suits. The first is directed against enterprises such as private businesses (for example, firearms dealers who failed to take adequate steps to prevent their handguns from being sold illegally to teenage gang members). The second type is aimed at custodial agencies and officials of the criminal justice system (such as munic- ipal police departments, prison wardens, and direc- tors of mental institutions). Whereas suing offenders is reactive, third-party civil suits can be both reactive and proactive. If for no other motive than their own enlightened self-interest, the private enterprises and governmental bodies that are the targets of these kinds of suits are compelled to take reasonable and necessary precautions to prevent further incidents for which they could be sued again. By discouraging the indifference and negligence that facilitate predatory acts, third-party civil suits contribute to security con- sciousness and crime prevention (Carrington, 1986). A National Crime Victim Bar Association (2007) encourages injured parties to seek redress through civil actions and provides names of attorneys who specialize in lawsuits.
Suing Private Enterprises Several successful suits during the 1970s have served as landmark cases for many subsequent claims:
A well-known singer is raped in a motel by an unknown assailant who entered her room by jiggling the lock on the sliding glass terrace doors. Badly shaken by the experience and unable to appear on stage, the singer sues the motel chain for loss of earnings. Her attorney argues that the motel showed gross negligence by failing to maintain secure premises for its guests. A jury renders a verdict in her favor of $2.5 million. The motel chain agrees to a settlement by not appealing the verdict and pays her $1.5 mil- lion. (Barbash, 1979; and Rottenberg, 1980)
A security guard at a drive-through hamburger stand is shot in the head during a robbery. He doesn’t sue the offender or his employer (the restaurant). Instead,
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his attorney argues successfully that the chain store that sold the robber the bullet is guilty of gross neg- ligence. The guns and ammunition department rou- tinely ignored an obscure state law that requires two citizens to vouch for the identity of the purchaser of bullets. (Barbash, 1979; and Rottenberg, 1980)
Third-party lawsuits against businesses have established new definitions of corporate responsibil- ity and financial liability. The suits never accuse the defendant (business) of intentionally harming the plaintiff because the executives in charge probably never met either the victim or the offender and were two or three steps removed from the criminal action. What is alleged is that the defendant’s gross negligence and breach of responsibility created a climate that made the criminal’s task easier and the incident predictable (Carrington, 1977, 1978).
Third-party suits against private enterprises can take several forms. Lawsuits can allege that landlords are responsible for crimes committed against their tenants because of inadequate lighting or locks. Hotels and motels may be liable for assaults and thefts committed against guests because of lax secu- rity measures (such as failure to install closed-circuit television monitors, store room keys safely, or hire guards). Banks, stores, shopping malls, and theaters can be held accountable for failure to provide ordi- nary care to protect customers from robbers and thieves. “Common carriers” (bus, train, or airplane companies) might be liable for failure to furnish customary forms of protection for passengers on vehicles or at stations and platforms. Employers who negligently hire known felons and put them in positions of trust might be partly to blame if the ex-cons break laws during the course of their assigned duties. Even college administrations could be responsible for failing to correct security lapses that a reasonable and prudent individual would realize endanger students in campus buildings and dormitories (Austern, 1987).
Plaintiffs can win if they can prove in civil court that the third party did not take sufficient actions to prevent a reasonably foreseeable crime. To prevail, the attorney must convincingly demon- strate that the defendant chronically disregarded
complaints, did not post warnings, chose not to rectify conditions and improve security, and did not offer the degree of protection expected by community standards. Most claims fail to meet this test, but the few that succeed can contribute to the improvement of public safety in places like shopping centers, bus terminals, parking lots, hotels, and apartment complexes (Brien, 1992), as well as airports and on airplanes, as these two suits demonstrate:
A third-party lawsuit alleging wrongful deaths and injuries is filed in 2002 in behalf of 85 people who were killed and 11 who were injured when a hijacked plane crashed into one of the towers in New York’s World Trade Center on September 11, 2001. The plaintiffs allege that the airline and the airport security company it hired to screen passengers showed gross negligence in allowing five terrorists to board the plane with knives and a canister of Mace which they used to take command of the aircraft from the crew. The defendants argue that an airline and a security com- pany could not be held liable “for not stopping an attack that the entire federal government was unable to predict, plan against or prevent.” Before a civil trial begins, most of the plaintiffs accept an out- of-court settlement in 2009; the remaining family agrees in 2011. (Thousands of other victims were not covered by the suit because they opted for relatively quick and uncontested settlements from a special compensation fund created by Congress.) In a parallel case, a major financial firm in 2004 files a nearly $950 million gross negligence lawsuit against a dif- ferent airline whose plane was hijacked by a cell of 5 terrorists and then crashed into the other tower. After nearly 10 years, the firm, which had been located near the top of the skyscraper, agrees to accept a settlement of $135 million from the airline that covers business losses, but does not provide compensation for the death of all of its 660 employees working in their offices that day. (Weiser, 2011; and Larson, 2014)
Because many lawsuits against property owners are settled out of court, reliable figures about their rate of occurrence and success are hard to find. One estimate from a sample of court records turned up 186 suits against property owners from 1958 to
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1982. A later study established that the rate had increased, locating 267 third-party suits from 1983 to 1992. Almost half of all the suits were launched by women who had been raped (Deutsch, 1994). As attorneys hone their skills at security litigation seminars, landlords and businesses attempt to make their premises or products as suit-proof as possible, even if they cannot make them crime-proof (Purdy, 1994).
In recent years, one type of third-party lawsuit has become extremely controversial. People wounded by gunfire have filed many claims against the firearms industry over the years. One example of a successful suit took place after a pair of snipers terrorized the Washington, D.C., area in 2002. Eight people who were wounded and the next of kin of those who were murdered eventually won a $2.5 million legal settlement from the manufacturer of the high-powered rifle and from the gun dealer who improperly sold it. In reaction, a lobbying campaign by the National Rifle Association con- vinced Congress in 2005 to pass “shield legislation (similar to the existing laws in 33 states). The Pro- tection of Lawful Commerce in Arms Act prohibits third-party lawsuits against firearms and ammuni- tion manufacturers and dealers as long as their pro- ducts function as designed and intended. Victorious backers of the gun lobby’s measure said it was needed to preserve the Fourth Amendment’s con- stitutional right to bear arms and also to keep the American arms industry in business in the face of “frivolous” but costly negligence lawsuits. Disap- pointed opponents argued that firearms are a uniquely hazardous product that can cause foresee- able harm to others if reasonable steps are not taken to prevent their misuse. By passing the shield law, Congress deprived wounded people and the next of kin of murder victims (as well as entire municipali- ties, such as New York City, that incur huge expenses from gun violence) from pursuing a legit- imate avenue for financial recovery. Since 2005, most third-party lawsuits have been dismissed by the courts. Lawsuits seeking to hold gunmakers accountable when their weapons are used to com- mit crimes like mass shootings of innocent people have a chance of success only if the civil litigants can
prove that grossly negligent behavior on the part of manufacturers or distributors enabled powerful weap- ons to get into the handsof knowncriminals prohibited from owning them (for example, due to a licensed dealer knowingly filing false paperwork about a sale) (Stolberg, 2005; Fisher, 2012; Morgenthau, 2013; and Hamburger et al., 2013).
Suing Governmental Bodies Successful third- party lawsuits against criminal justice agencies and custodial officials, like the two 1970s landmark cases described below, are less common than suits against private enterprises:
A 14-year-old girl is abducted from a private school, tied to a tree, molested, and then left to freeze to death. The man who kills her had previously attacked another girl from the same school in the same way. He had been committed for treatment while under confinement at a nearby psychiatric institute. The victim’s parents sue the mental hospital, a psychia- trist, and a probation officer for arranging the release of the offender into an outpatient program without first receiving court approval. They win a judgment of $25,000. (Carrington, 1977, 1978)
An inmate with a record of 40 felony convictions and 17 escape attempts is permitted to participate in a “take-a-lifer to dinner” program. After eating at the home of the prison’s baker, he breaks loose, commits an armed robbery, and kills a man. The victim’s widow sues the warden both personally and in his official capacity, in addition to the state prison sys- tem, for gross negligence. Her attorney argues that the warden didn’t have legislative authority or adminis- trative permission from his superiors to let the inmate out that night. She wins a judgment of $186,000, which the state does not appeal. (Barbash, 1979; and Rottenberg, 1980)
The basic charge in civil actions against the government once again is gross negligence. The plaintiffs allege that public officials severely abused their discretionary authority. The crimes are said to have happened because official inaction or incom- petence facilitated the offenders’ inclinations to
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harm innocent parties. In a few states, governmen- tal bodies cannot be sued even when the negligence of officials clearly contributed to the commission of crimes; the agents and agencies are protected by the English common law doctrine of sovereign immunity. Most states and the federal government permit citizens to sue but impose limitations (for example, financial caps and exemption from puni- tive damages) and invoke special procedures (Carrington, 1978; and Austern, 1987).
Specific charges in third-party liability lawsuits against governmental agencies and officials fit under a number of headings (Austern, 1987). Claims against the police can allege nonfeasance: that officers failed to act to protect individuals to whom they owed a special duty, such as witnesses for the prosecution. Claims can also allege police malfeasance: that officers acted carelessly or inat- tentively as victims were hurt, as in the following often-cited case:
A woman is stabbed by her husband 13 times. Nearly 30 minutes later, the police arrive in response to her earlier call for help. As the husband wanders around screaming, he kicks her in the head, then drops their son on her unconscious body and kicks her again. Finally, the police restrain him and take him into custody. After eight days in a coma and several months in a hospital, the woman sues the city, three police chiefs, and 29 officers. Her lawsuit alleges that because the assailant was her husband, the police failed to provide her with equal protection under the law, as guaranteed by the Fourteenth Amendment, by handling her numerous calls for help over the years differently than cases of assaults by strangers. A jury finds the police department negligent for failing to protect her and awards her $2.3 million. The city appeals, and she settles for $1.9 million out of court. (Gelles and Straus, 1988)
When prisoners are not supervised adequately or are released as a result of an administrative error and then inflict harm, suits can allege wrongful escape. When dangerous convicts are released and they injure people whom they had previously publicly threatened, suits can be filed for failure to warn. Claims can also allege wrongful release
when, through gross negligence on the part of offi- cials, a high-risk inmate is granted conditional release (probation, parole, or furlough) from a jail, prison, or mental institution and then commits a foreseeable act of lawlessness. The following cases illustrate these problems:
A 24-year-old graduate student in criminal justice is drinking alone at a fashionable club at closing time. The bar’s bouncer lures her into his van, binds her, drives to a deserted spot, sexually assaults her, and then kills her. He is caught, convicted, and sentenced to life imprisonment. The murdered student’s family sues the 44-year-old bouncer, the bar, and the U.S. Probation Service. The bouncer is penniless, and the bar settles its suit for $375,000. The suit seeks $100 million, charging that the U.S. Probation Service was guilty of gross negligence for failing to monitor the bouncer, who was on probation at the time of the slaying and was known to be a violent ex-convict who was not eligible to work in a drinking establishment. Federal Probation is represented by the U.S. attorney in that district and argues that it cannot be sued. But the agency consents to a settlement of $130,000, of which almost half goes to the three lawyers repre- senting the family (they get a 25 percent contingency fee and the rest covers expenses). Most important to the family, the U.S. Probation Service names its probation-tracking program in her honor. (Italiano and Mangan, 2011)
An 11-year-old girl is snatched off the street, raped periodically, and held captive for over 18 years in tents and sheds in the backyard of a convict who had previously served time for kidnapping and rape. As the girl grows up, she is impregnated twice and bears two daughters. She is finally rescued at the age of 30, along with her children, now 12 and 15 years old. The three females sue the Department of Corrections and Rehabilitation for gross negligence in supervising the known sex offender, since parole officers making home visits failed to detect their presence in the backyard for about 10 years of her captivity. The state’s inspector general issues a report lambasting the agency’s operations, and as a result parole officers are
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given smaller caseloads and closer supervision, and high-risk offenders are watched more carefully. Even before the man is convicted, the state legislature votes nearly unanimously to quickly settle the suit for $20 million, even though the government is in the throes of a fiscal crisis. The money will be used to buy the family a home, ensure their privacy, pay for the mother’s and daughters’ education, compensate for lost income, and cover years of psychotherapy. (Thompson, 2010)
Suits against custodial officials and probation and parole agencies raise important issues. The Supreme Court ruled in 1980 (Martinez case) that neither the Constitution nor the Civil Rights Act of 1964 gave the survivors of a person who was murdered the right to sue a state parole board (Carrington, 1980). In upholding the doctrine of sovereign immunity from liability, the justices of the Court argued that government has a legitimate interest in seeking to rehabilitate criminals. Every treatment alternative to totally incapacitating convicts through maximum- security confinement involves taking risks with the public’s safety. Halfway houses, therapeutic commu- nities, work release, educational release, furloughs, probation, and parole all grant conditional liberty to known offenders who may pose a continuing threat to community safety. Underlying a charge of abuse of discretionary authority and gross neg- ligence is the assumption that danger can be predicted—but it usually cannot be with any statisti- cal certainty. Some patients and inmates thought to be dangerous turn out to be well-behaved (false positives), and some out on probation or parole enjoying conditional liberty who were rated as pos- ing a low risk may suddenly act viciously (false negatives).
What is predictable is that successful third-party lawsuits by victims against custodial officials and agencies will have a chilling effect on wardens, psy- chiatrists, parole boards, and others who make deci- sions regarding confinement versus release. What might develop in these therapeutic relationships is a type of defensiveness comparable to the defensive medicine practiced by doctors afraid of malpractice suits. Fear of legal and financial repercussions could
dominate professional judgments and record keep- ing. Rehabilitation programs could be severely con- strained. Eligible convicts could be barred from such programs because administrators wouldn’t want to jeopardize their careers by releasing them from total confinement. Qualified professionals could be deterred from taking jobs as custodial officials because of exposure to personal liability lawsuits, unless states protect such employees under a doctrine of sovereign immunity.
On the other hand, vulnerable members of the general public need lawsuits as a vehicle to exert some leverage over justice officials and unrespon- sive bureaucracies. Also, aggrieved parties need a way to hold grossly negligent agency officials accountable, as well as a mechanism to recover losses inflicted by dangerous people who should not have been left unsupervised. Third-party law- suits can serve as an appropriate remedy to establish a proper balance between two conflicting policy objectives: lowering the crime rate in the long run by rehabilitating offenders through the judi- cious granting of conditional liberty and maintain- ing public safety in the short run by incapacitating and incarcerating individuals believed to be danger- ous to the community (Carrington, 1980).