Crime Victims Frequently Asked Questions: Lawsuits

Is It Necessary to File a Lawsuit Every Time

1. What’s the difference between making a claim and filing a lawsuit?

It is not necessary each and every time to file a lawsuit.

But, we have found that filing a lawsuit in a premises liability case is usually a good idea to maximize your recovery. When attacked by an assailant, it is usually the only way to get a settlement.

Insurance companies only pay large amounts of money when they are afraid of losing more. A settlement demand does NOT make an insurance company scared of losing money; a jury verdict does.

1. When is it a good idea to file a lawsuit rather than just make a claim for money?

Generally speaking, it is always a good idea to file the lawsuit when your injuries are more severe or permanent.

Additionally, filing a lawsuit against the business landowner where you were attacked is almost always necessary because the landowner almost always denies any duty owed to you.

Filing the lawsuit does not delay this type of case. The investigation done prior to paying a settlement is very similar to that done in a lawsuit anyway – so it just makes sense to do both at the same time and put fear into the insurance company of future risk.

Also, we must file a lawsuit when responsibility for the injury is denied by the landowner or business insurance company. Otherwise, there is no way of forcing a settlement.

1. Must I file a lawsuit if I hire you? The idea of a trial scares me.

No, it is not necessary, but when attacked on business property, a pre-suit settlement is almost unheard of.

Typically, businesses deny any responsibility for your injury and blame the criminal for a spontaneous, random event.

Therefore, when you are injured by a crime, it is almost always necessary to file a lawsuit.

1. If I file a lawsuit, does that mean it must go to a jury trial?

No, it is not required.

If a duty is found by the trial court Judge from the business landowner to you for the foreseeable criminal event, then we must prove a breach of that duty. In other words, we must prove the business acted unreasonably in keeping you safe under the circumstances.

Consequently, these types of cases do go to trial more than other premises liability cases (our statistics show almost 98% of all of our cases do NOT ever see the inside of a court room at any time, but these types of cases are different). And most of our cases settle for money out-of-court.

1. If I do file a lawsuit, can I still settle my case?

Yes, you can still settle your lawsuit at any time during the case prior to trial.

In fact, the Court will require you to attend a settlement conference with the opposing side before allowing a case to proceed to a jury trial.

Also, we have settled cases the day before or the day of a jury trial, too. It all depends.

1. Will I be hurting the business or any employee if I file a lawsuit?

No, you will not be hurting the business or its employees.

Most businesses have insurance coverage to cover negligent acts – even those that allow crimes to happen to innocent people like you.

Just like you have automobile insurance, almost all business landowners purchase insurance to provide coverage for persons injured on its land. Some companies are so large they are self-insured or must pay a large deductible and that sometimes hinders our ability to effectuate a fair settlement as it comes directly out of their pocket.

1. Why does it take so long to investigate what happened, I already told them how this happened?

Litigation occurs in stages. There’s steps including investigation (discovery), followed by court hearings, pre-trial preparations and finally settlement negotiations.

Whenever money is involved (and this includes settlements), the insurance company want to make certain it is deserved.

Especially in crime victims cases, there is a threshold question of whether a duty existed from the business landowner to you or not.

This will take a series of written motions and responses to be written to the trial court Judge.

The Judge will read the motions and take up to 60 days to make a written determination.

If a duty is found to exist, then we must prove the conduct of the business landowner violated the duty found to exist by the Judge. This depends upon the facts of the case.

All of this takes time. And your patience. But, if you hang in there, most people find it was worth the wait.

What Am I Required to Prove to Win

1. Why does everybody keep talking about “fault?” Clearly, this was intended by the criminal against me?

The fault of the business landowner is the issue (what needs to be determined).

We often argue the criminal and his intention or fault is not determinative. In other words, the attack was the reason for this claim to be made – not a part of the fault determination and division.

1. Why is “fault” required to be proven by us rather than them?

We must prove "fault" because Indiana law says so.

This concept is called the "burden of proof." Just like in a criminal case, the government must prove the defendant was guilty "beyond a reasonable doubt," we must prove in a civil case that the business landowner was "probably" at fault.

Our burden of proof is much less stringent than that of the government in a criminal case. We must only prove it was more likely than not the business landowner's fault. This reduced level of proof is due to the fact that criminal cases involve personal liberty and that is considered to be a much more severe punishment than simply paying monetary damages by Indiana law.

Thus, our burden of proof is reduced. We often must explain the "burden of proof' to a jury because they can be confused by the difference between criminal versus civil cases and how the burden of proof is different in each type of case.

An important thing to remember is that the business landowner has the same burden of proof ("more likely than not" often called a "preponderance of the evidence") if they try to blame you for any fault for your injuries.

1. What is the difference between “fault” and “negligence?”

There is no difference for our purposes.

1. How do I prove it was the fault of the landowner or business where was attacked?

We can prove fault based upon a variety of methods.

Our investigation can include sending a private investigator to speak with any possible witnesses to the event. We can also perform an investigation during the case by sending out written questions for the other side to answer. We can then follow up with oral statements under oath (depositions) of any known witnesses or persons who might have information.

Finally, we can perform a very unique and special deposition of the business itself (a 30b6 deposition, it is called) where all knowledge of the business is to be produced during an oral examination of a person specifically designated by the company to appear and answer.

1. Who determines who is at fault? The attorneys? The Judge? The jury?

Fault is determined by a jury.

For criminal acts committed upon business land that hurts another person, the Judge first determines if there was a duty at all before fault is allowed to be analyzed.

The attorneys simply characterize and attempt to persuade the jurors to find how fault should be analyzed and/or divided between you and the business landowner.

1. How can they blame me and say I was at fault in any way for my own fall when there were no witnesses other than the criminal?

Fault is a determination usually made by a jury. It depends upon many different factors.

See our previous link (here) for what to do immediately after a fall to help get a settlement fairly and quickly.

1. What is "standard of care" owed to me by the business or landowner?

The "Standard of Care" for any business landowner is the level of how careful it needed to be with regard to how it operated its land prior to your injury.

There are different levels of care required by Indiana law that a business landowner must be. These different levels are all conditioned upon whether the person who was injured was invited on the land (not necessarily an express invitation, but customers are considered to have been invited to spend money) or was a trespasser.

Invited persons are owed the highest duty of care by the business; trespassers are almost owed no duty (only a duty to not set traps designed to injure).

See the section above on Indiana law to determine whether you think you had an invitation to be on the land. There is a middle duty - that owed to a licensee (best example of licensees are volunteer members at a car wash held at a grocery store; they don't necessarily help the business monetarily, but they are allowed permission to be there).

Customers and invited persons on land are owed the highest duty of care by a business landowner. That care is defined as "reasonable" care under the circumstances. In other words, the business landowner must act reasonably before your injury in order to prevent it.

Merely falling is not an indication the business landowner did anything wrong. In fact, people fall all the time. Sometimes, people trip over their own shoelaces and this cannot be the fault of the business landowner.

Similarly, failure to plow or salt an icy parking lot is not necessarily an indication of unreasonable conduct either. If the business landowner could not salt or plow because it was too cold or it was snowing at the time of your fall, then a jury could theoretically find it was not unreasonable to fail to do so. This is a very difficult situation for an injured person to understand.

The bottom line is this -what is "reasonable" care is determined by a jury. And once you hire us, we can attempt to persuade the insurance company or the jury that the actions or omissions of the business landowner was not reasonable before you were injured.

1. How do I prove the business or landowner knew about the danger beforehand?

Proving notice is best handled by an attorney.

Very rarely will we get an admission by an employee of a business that he/she knew about a dangerous condition before your injury and failed to act (although, surprisingly it happens).

The best way to prove notice is to highlight "constructive notice" and what should have been known by the business had it performed routine or regular inspections. These inspections need to be reasonably done and documented. Failure to do so can be the basis for an argument the business landowner stuck its head in the sand and did not provide reasonable care to customers before an injury occurred.

1. How much advance notice of the potential for imminent violence (harm) must a landowner have before they will be determined to be responsible?

Thirty Minutes of threats were determined to be long enough for a restaurant to be held responsible for a shooting that occurred after the threats.

But, in Goodwin, the Indiana Supreme Court ruled a tavern did not know or have reason to know a shooting was going to occur, especially since it happened quickly and without any prior notice to the staff or management. Thus, the Indiana Supreme Court ruled it was not reasonably foreseeable to the tavern a shooting would occur.

Another, non-reportable case held that an assailant who was on gas station property for 64 seconds and punched another customer was not enough time for the gas station employees to be held to have foreseeable knowledge of imminent harm to that customer.