Options Besides a Lawsuit After an Attack on a Property

What Makes a Property Owner Responsible for an Attack

Knowing what a claim against the property involves makes it easier to see what each alternative does and does not replace. That claim is called negligent security, a branch of premises liability. Premises liability is the area of state law that deals with the duty of people who own or control property to keep it reasonably safe for those who are lawfully there. A negligent security claim asks whether that duty included reasonable protection against a crime that could have been foreseen, such as working locks, lighting, gates or guards. It also asks whether a failure to provide that protection helped lead to the attack.

A civil claim of this kind generally has to show four things:

• Duty: the owner or operator owed the injured person reasonable care.
• Breach: the owner or operator fell short of that care.
• Causation: the shortfall helped cause the harm.
• Damages: real losses such as medical bills, lost earnings or pain.

An injury on a property does not by itself prove any of these. Whether each element is met depends on the facts. The overview of what negligent security cases involve and the guide to an inadequate security lawsuit explain these elements in more depth.

This is a civil claim, brought by the injured person, or by the family after a death, against the property owner or operator. That makes it a different thing from the criminal case, in which the government prosecutes the attacker.

State law governs these claims, and the rules are not the same everywhere. How foreseeability is judged, how fault is shared, what damages the law may allow and how long a person has to file all differ from state to state. No single state's rule is the rule for the whole country.

Three Paths That Do Not Require Filing a Lawsuit

There are three paths that do not start with a court filing against the property:

1. a claim submitted to the property owner's liability insurer;
2. an application to a state crime victim compensation program; and
3. the criminal case against the person who carried out the attack.

One point matters from the start. Only a civil claim against the property owner, whether it is resolved through the owner's insurer or in court, can lead to money from that owner. A compensation program pays from a government program. The criminal case is about the attacker's guilt.

Each path has its own eligibility rules, its own scope and its own limits. A program may reimburse some expenses and not others. An insurer may pay only for what the policy covers, and only in exchange for a release. The criminal case may produce no money at all. The paths also do not cancel each other out. A person can cooperate with prosecutors, apply for compensation and pursue a claim against the property, all for the same attack. For someone recovering, the order of these paths can matter as much as which ones are pursued.

What Happens If You Accept the Insurer's Offer?

Many property owners and operators carry liability insurance, a policy that pays for certain injury claims made against them. After an attack on the premises, an injured person or a family can submit a claim to that insurer without first filing a lawsuit. The insurer may investigate the claim, ask for records and sometimes make a settlement offer.

What this path can cover depends on the policy and on the strength of the underlying claim. That may include medical expenses, lost wages and other damages the policy reaches. The insurer is not a neutral party. It acts for the property owner, its own policyholder, and its interest is in the owner's position, not the injured person's. Any offer reflects the insurer's view of the same four elements, seen from the owner's side.

The most important feature of this path is what a settlement usually does. When an injured person accepts a settlement from the owner's insurer, the agreement typically resolves the civil claim against that owner. That generally ends the ability to sue the owner later over the same attack. The exact effect depends on the words of the release and on state law.

The practical stake is timing. Injuries can be hard to measure early on, when treatment is still under way. An offer accepted before the full extent of the injuries is known may not reflect costs that arise later, and because the release generally ends the claim against the owner, those later costs may not be recoverable from that owner. A person in this position may want to consider what the offer covers, what losses are still unknown, and what the release gives up. A conversation with an attorney can help a person understand an offer's terms before deciding on it. Whether to accept, negotiate or decline is a choice for the injured person or family.

Can a State Program Help With Medical or Funeral Bills?

Crime victim compensation is, in the words of the Office for Victims of Crime, "a direct reimbursement to or on behalf of a crime victim for a wide variety of crime-related expenses such as medical costs, mental health counseling, lost wages, and funeral and burial costs." The same page states that the Office for Victims of Crime administers federal funds to support these programs in all U.S. states, Washington, D.C., the U.S. Virgin Islands, Puerto Rico and Guam.

The Office for Victims of Crime also states that eligibility "varies by state and territory" and is "determined by each state victim compensation program." It states that victims "may contact the victim compensation program for the state or territory in which the crime occurred to inquire about program services and eligibility requirements."

Federal law sets conditions for a state program to qualify for federal support. Under 34 U.S.C. § 20102(b), an eligible program is one operated by a state that offers compensation to victims and survivors of victims of criminal violence for "(A) medical expenses attributable to a physical injury resulting from compensable crime, including expenses for mental health counseling and care; (B) loss of wages attributable to a physical injury resulting from a compensable crime; and (C) funeral expenses attributable to a death resulting from a compensable crime." The same subsection lists further conditions. One is that the program "promotes victim cooperation with the reasonable requests of law enforcement authorities." That condition carries an exception where a program determines cooperation may be affected by a victim's age, physical condition, psychological state, cultural or linguistic barriers, or another health or safety concern. Other conditions include treating nonresident victims of crimes within the state on the same criteria as residents. The statute also requires covering victims of federal crimes within the state on the same basis as victims of state crimes.

For a family carrying hospital or funeral costs, this path has a distinct character. It is a government program, so the money does not come from the property owner. It does not require a civil lawsuit or any finding that the owner was at fault. Award limits, the expenses covered, the paperwork and any filing deadlines are set by each state's program and differ from one state to another. Each state's program also sets its own rules on how its awards relate to other payments, so how a compensation award would be treated if a later claim against the property succeeds is one of the questions a conversation with an attorney can help untangle.

Will the Criminal Case Settle the Property Owner's Role?

For many families, the prosecution is the most visible thing happening after an attack. It belongs to the government. Prosecutors, not the victim, decide whether to bring charges and what charges to bring. The injured person is a witness in that case, not a party to it, and does not control how it proceeds or ends.

A conviction establishes that the attacker is guilty of a crime. It does not establish that the property owner is liable. The criminal case asks what the attacker did. A negligent security claim asks whether the owner or operator owed and breached a duty of reasonable care, and whether that breach helped cause the harm. A conviction, or facts that come out at a trial, may be relevant evidence in a later civil case. Still, a conviction does not resolve the civil claim, and an acquittal does not end it either.

Depending on the state, a criminal court may be able to order a person convicted to pay restitution, meaning repayment of certain losses to the victim. Restitution rules differ by state. Any order runs against the attacker, not the property owner. It is separate from the damages a civil claim may seek, and whether it is ever paid depends on the attacker's ability to pay.

The criminal case runs on its own schedule, which can be long, and it does not wait for a civil claim or speed one up. If you are following a prosecution while wondering about the property's role, it can feel as though the criminal case should answer everything. It answers only the question it was built for.

What Families Weigh When Choosing Among These Paths

Timing comes first, because a civil claim has a deadline. A statute of limitations is the law that sets how long a person has to file a civil claim. Limitation periods for negligent security and wrongful-death claims differ by state. They run on their own, regardless of where the criminal case stands. Waiting for a prosecution to finish, or for a compensation decision, does not by itself pause a civil deadline. The rule in the state where the attack happened is what decides it.

The paths also affect one another differently. An insurer settlement typically ends the civil claim against the owner. Receiving crime victim compensation generally does not, on its own, end the right to pursue a civil claim, though the state program's rules on other payments still apply. The criminal case goes forward whatever the injured person or family decides about a civil claim.

Who may bring a civil claim also matters, especially after a death. The guide on who can bring a claim covers the person attacked and the family. Claims tied to housing, such as apartment complex negligent security, raise their own questions about who controlled the common areas.

Evidence is shared across these paths. For a civil claim, the records that usually matter include medical records and bills, police and incident reports, photos or video of the scene and the injuries, and the names and contact details of witnesses. Records of prior crimes or complaints at the property can bear on foreseeability. Many of the same documents also support a compensation application or help prosecutors.

Choosing among these paths raises questions that turn on the state and the facts. These include the civil limitation period where the attack happened, what a release would give up, and how a compensation award would be treated. Our attorney can talk through how these paths fit together in a case evaluation. The guide to common questions about these claims covers related ground.